THE AGENT, THE ARRANGERS AND THE BANKS. 33.1 Appointment of the Agent Each of the Arrangers and the Banks hereby appoints the Agent to act as its agent in connection with the Finance Documents and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms thereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto provided that the Agent shall not start or commence any legal action on behalf of any Bank without such Bank's prior written consent. The Agent shall be released from the restrictions set out in Section 181 of the German Civil Code (Burgerliches Gesetzbuch). The Agent may grant substitute powers of attorney and release any sub-agent from such restrictions and revoke such substitute powers of attorney. 33.2 Agent's Discretions The Agent may: 33.2.1 assume, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by an Obligor in connection herewith is true, (b) no Event of Default or Potential Event of Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested hereunder in the Banks or any other person or group of persons has not been exercised; 33.2.2 assume that each Bank's Facility Office is that identified with its signature below (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace such Facility Office and act upon any such notice until the same is superseded by a further such notice; 33.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained; 33.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor upon a certificate signed by or on behalf of such Obligor; 33.2.5 rely upon any communication or document believed by it to be genuine; 33.2.6 notwithstanding Clause 33.1, refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised; 33.2.7 refrain from acting in accordance with any instructions of the Majority Banks to begin any legal action or proceeding arising out of or in connection with any Finance Documents until it has received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which it will or may expend or incur in complying with such instructions; and 33.2.8 for the avoidance of doubt, exercise any right, power or discretion vested in it as agent hereunder without a prior written consent of the Majority Banks (as requested hereunder) if the Agent determines, in its absolute discretion, that to acquire such prior written consent would materially impair any rights of the Banks in connection with the Finance Documents or would for any other reason in the best interest of all parties hereto not be feasible. 33.3 Agent's Obligations The Agent shall: 33.3.1 promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an Obligor under any Finance Document; 33.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor in the due performance of or compliance with its obligations under any Finance Document of which the Agent has notice from any other party hereto; 33.3.3 save as otherwise provided herein, act as agent hereunder in accordance with any instructions given to it by the Majority Banks, which instructions shall be binding on the Arrangers and the Banks; and 33.3.4 if so instructed by the Majority Banks, refrain from exercising, and in exercising its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any right, power or discretion vested in it as agent under any Finance Document. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature. 33.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor the Arrangers shall: 33.4.1 be bound to enquire as to (a) whether or not any representation made by an Obligor in connection herewith is true, (b) the occurrence or otherwise of any Event of Default or Potential Event of Default, (c) the performance by an Obligor of its obligations hereunder or (d) any breach of or default by an Obligor of or under its obligations hereunder; 33.4.2 be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account; 33.4.3 be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arrangers, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit of any person; 33.4.4 be under any obligations other than those for which express provision is made in any Finance Document; or
Appears in 1 contract
Samples: Term Loan Facilities Agreement (Dyckerhoff Aktiengesellschaft)
THE AGENT, THE ARRANGERS AND THE BANKS. 33.1 34.1 Appointment of the Agent Each of the Arrangers and Arrangers, the Banks and, for the purposes of (a) Clause 31 (Payments), Clause 33 (Sharing) and Clause 43 (Amendments) of this Agreement and (b) the Agent's entry into of certain of the Security Documents, the Permitted Facilities Provider, hereby appoints the Agent to act as its agent in connection with the Finance Documents and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by under or in connection with the terms thereof Finance Documents or, as the case may be, the Secured Permitted Facilities together with all such any other incidental rights, powers, authorities and discretions as are reasonably incidental thereto provided discretions. In respect of the Subordination Deed and the Second Subordination Deed, the parties hereto agree that the Agent shall not start or commence any legal action on behalf of any Bank without such Bank's prior written consent. The Agent shall be released from acts as the restrictions set out in Section 181 agent and representative of the German Civil Code (Burgerliches Gesetzbuch). The Agent may grant substitute powers Finance Parties and the Permitted Facilities Provider in accordance with the provisions of attorney and release any sub-agent from such restrictions and revoke such substitute powers of attorneyDutch law.
33.2 34.2 Agent's Discretions The Agent may:
33.2.1 34.2.1 assume, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by the Parent or an Obligor in connection herewith with the Finance Documents is true, (b) no Event of Default or Potential Event of Default has occurredoccurred (unless it has actual knowledge of an Event of Default arising under Clause 24.1 (Failure to Pay)), (c) no neither the Parent nor any Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested hereunder in herein upon an Instructing Group, the Banks or any other person or group of persons has not been exercised;
33.2.2 34.2.2 assume that each Bank's (a) the Facility Office of each Bank is that identified with its signature below notified to it by such Bank in writing and (orb) the information provided by each Bank pursuant to Clause 41 (Notices), Clause 34.15 (Banks' Mandatory Cost Details) and Schedule 10 (Mandatory Costs), and the information provided by the Permitted Facilities Provider pursuant to Clause 41 (Notices), is true and correct in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) all respects until it has received from such Bank or, as the case may be, the Permitted Facilities Provider notice of a notice designating some other office of such Bank change to replace such the Facility Office or any such information and act upon any such notice until the same is superseded by a further such notice;
33.2.3 34.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained;
33.2.4 34.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of the Parent or an Obligor upon a certificate signed by or on behalf of the Parent or such Obligor;
33.2.5 34.2.5 rely upon any communication or document believed by it to be genuine;
33.2.6 notwithstanding Clause 33.1, 34.2.6 refrain from exercising any right, power or discretion vested in it as agent hereunder under the Finance Documents unless and until instructed by the Majority Banks an Instructing Group as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;
33.2.7 34.2.7 refrain from acting in accordance with any instructions of the Majority Banks an Instructing Group to begin any legal action or proceeding arising out of or in connection with any the Finance Documents until it has shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which it will or may expend or incur in complying with such instructions; and
33.2.8 for 34.2.8 assume (unless it has specific notice to the avoidance of doubt, exercise contrary) that any right, power notice or discretion vested in it as agent hereunder without a prior written consent of request made by the Majority Banks (as requested hereunder) if the Agent determines, in its absolute discretion, that to acquire such prior written consent would materially impair any rights of the Banks in connection with the Finance Documents or would for any other reason in the best interest Principal Borrower is made on behalf of all parties hereto not be feasiblethe Obligors.
33.3 34.3 Agent's Obligations The Agent shall:
33.3.1 34.3.1 promptly inform each Bank of the contents of any written notice or document received by it in its capacity as Agent from the Parent or an Obligor under any the Finance DocumentDocuments;
33.3.2 34.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by the Parent or an Obligor in the due performance of or compliance with its obligations under any the Finance Document Documents of which the Agent has notice from any other party hereto;
33.3.3 34.3.3 promptly notify each Bank of the occurrence of an Event of Default under Clause 24.1 (Failure to Pay);
34.3.4 promptly notify each Bank and the Permitted Facilities Provider of all or any part of the Advances being declared to be immediately due and payable in accordance with either Clause 24.20 (Acceleration and Cancellation) or Clause 24.21 (Advances Due on Demand);
34.3.5 save as otherwise provided herein, act as agent hereunder under the Finance Documents in accordance with any instructions given to it by the Majority Banksan Instructing Group, which instructions shall be binding on the Arrangers and the Banks; and;
33.3.4 34.3.6 if so instructed by the Majority Banksan Instructing Group, refrain from exercising, and in exercising its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any right, power or discretion vested in it as agent under the Finance Documents; and
34.3.7 unless it has a Bank's consent, refrain from acting on behalf of that Bank in any legal or arbitration proceedings relating to any Finance Document. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
33.4 34.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor the Arrangers an Arranger shall:
33.4.1 34.4.1 be bound to enquire as to (a) whether or not any representation made or deemed to be made by either the Parent or an Obligor in connection herewith with the Finance Documents is true, (b) the occurrence or otherwise of any Event of Default or Potential Event of Default, (c) the performance by either the Parent or an Obligor of its obligations hereunder under the Finance Documents or (d) any breach of or default by either the Parent or an Obligor of or under its obligations hereunderunder the Finance Documents;
33.4.2 34.4.2 be bound to account to any Bank or the Permitted Facilities Provider for any sum or the profit element of any sum received by it for its own account;
33.4.3 34.4.3 be bound to disclose to any other person any information relating to any member of the NTL Inc. Group, any member of the NTL Inc. Holding Group or any member of the Group if (a) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arrangers, that such information was is confidential or (b) such disclosure would or might in its reasonable opinion constitute a breach of any law or be otherwise actionable at the suit a breach of any personfiduciary duty;
33.4.4 34.4.4 be under any obligations other than those for which express provision is made in any Finance Documentherein; or
Appears in 1 contract
Samples: Credit Agreement (NTL Europe Inc)
THE AGENT, THE ARRANGERS AND THE BANKS. 33.1 Appointment of the Agent (A) Each of the Arrangers and the Banks Bank hereby appoints the Agent to act as its agent in connection with the Finance Documents herewith and authorises authorizes the Agent to exercise such rights, powers, authorities powers and discretions as are specifically delegated to the Agent by the terms thereof hereof together with all such rights, powers, authorities powers and discretions as are reasonably incidental thereto provided that the Agent shall not start or commence any legal action on behalf of any Bank without such Bank's prior written consent. The Agent shall be released from the restrictions set out in Section 181 of the German Civil Code (Burgerliches Gesetzbuch). The Agent may grant substitute powers of attorney and release any sub-agent from such restrictions and revoke such substitute powers of attorneythereto.
33.2 Agent's Discretions The (B) When acting in connection with this Agreement, the Agent may:
33.2.1 assume, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, (1) assume that (a) any representation made or deemed to be made by an Obligor in connection herewith is true, (b) no Event of Default Early Repayment and no event which with the giving of notice, lapse of time or Potential fulfilment of any other condition would or might constitute an Event of Default Early Repayment has occurred, (c) no Obligor occurred and that none of the Obligors is in breach of or default under its respective obligations under the Finance Documents and hereunder unless it has received express notice thereof from any party hereto or (d) any right, power, authority or discretion vested hereunder in the Banks or any other person or group case of persons has not been exerciseda payment default hereunder) gained actual knowledge thereof;
33.2.2 (2) assume that each Bank's Facility Lending Office is that identified with its signature below (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some any other office of such Bank to replace such Facility as its Lending Office and act upon any such notice until the same is superseded by a further such notice;
33.2.3 (3) engage and pay for the advice or services of any experienced lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained;
33.2.4 (4) rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor any of the Obligors upon a certificate signed by or on behalf of such Obligor;
33.2.5 (5) rely upon any communication or document believed by it to be genuine;
33.2.6 notwithstanding Clause 33.1, (6) refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks as to whether or not the manner in which such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;
33.2.7 (7) refrain from acting in accordance with any instructions of the Majority Banks to begin any legal action or proceeding arising out of or in connection with any Finance Documents this Agreement until it has shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT value added tax or similar tax thereon which it will or may expend or incur in complying with such instructions;
(8) if it is unable to obtain instructions or communicate with a Bank after making reasonable attempts to do so, either refrain from acting as Agent on behalf of such Bank or take such action on behalf of such Bank as it in its absolute discretion deems appropriate and shall not be liable to such Bank as a result of any such action or inaction (save in the case of gross negligence or wilful misconduct); and
33.2.8 for the avoidance of doubt, exercise (9) refrain from acting in accordance with any right, power or discretion vested in it as agent hereunder without a prior written consent instructions of the Majority Banks (as requested hereunder) if the Agent determines, in its absolute discretion, that reasonable opinion they are contrary to acquire such prior written consent would materially impair any rights of the Banks in connection with the Finance Documents or would for any other reason in the best interest of all parties hereto not be feasibleapplicable law.
33.3 Agent's Obligations (C) The Agent shall:
33.3.1 (1) promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an Obligor under any Finance Documentof the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations of all the Banks hereunder;
33.3.2 (2) promptly notify each Bank of the occurrence of any Event of Default Early Repayment or any default by event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Obligor in Event of Early Repayment or any failure of any of the due performance of or compliance with Obligors duly to perform its respective obligations under any Finance Document this Agreement of which the Agent has received express notice from any other party heretohereto or (in the case of a payment default hereunder) gained actual knowledge;
33.3.3 save (3) subject as otherwise provided hereinherein provided, act as agent hereunder in accordance with any instructions given to it by the Majority BanksBanks and, which instructions shall be binding on the Arrangers and the Banks; and
33.3.4 if so instructed by the Majority Banks, refrain from exercising, and in exercising its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any a right, power or discretion vested in it as agent under any Finance Document. The Agent's duties under the Finance Documents are solely mechanical and administrative in naturehereunder.
33.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the (D) The Agent nor the Arrangers shallshall not:
33.4.1 (1) be bound to enquire as to (a) whether or not any representation made by an Obligor in connection herewith is true, (b) the occurrence or otherwise of any Event of Default Early Repayment (unless a payment default has occurred hereunder or Potential the Agent has been informed in writing by a Bank describing in reasonable detail an occurrence of an event which is expressly stated to be an Event of Default, (cEarly Repayment) or any event which with the performance by giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Obligor Event of Early Repayment or as to any failure of any of the Obligors duly to perform its obligations hereunder or (d) any breach of or default by an Obligor of or under its respective obligations hereunder;
33.4.2 (2) be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
33.4.3 (3) initiate any legal proceedings on behalf of any Bank unless specifically authorized by such Bank to do so, but the failure of any Bank to give such authorization shall not limit the right of the Agent to do so on behalf of any other Bank;
(4) be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to Obligors received by the Agent or, as the case may be, the Arrangers, that such information was confidential or (b) if such disclosure would or might in its the opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable at the suit of by any person;; or
33.4.4 (5) be under any fiduciary duty towards any Bank or under any obligations other than those for which express provision is made herein.
(E) Each Bank shall indemnify the Agent in the proportion its share of the Loan bears to the amount of the Loan or, as the case may be, the amount of its Commitment bears to the Total Commitments at the time any such instructions are given, against any and all costs, claims, expenses (including legal fees) and liabilities which the Agent may incur in complying with any instructions received by it from the Banks insofar as such expenses are not punctually reimbursed by the Obligors pursuant to the terms hereof except routine administrative costs and expenses of the Agent or to the extent that these costs, claims, expenses and liabilities are sustained or incurred as a result of the gross negligence or wilful misconduct of the Agent or any of its personnel or agents.
(F) Each Bank agrees that neither the Agent nor the Arrangers shall be responsible for the accuracy and completeness of any representations made (whether orally or otherwise) herein or in connection herewith, for the validity, effectiveness, adequacy or enforceability of this Agreement or for the creditworthiness of any of the Obligors, any other member of the Group or the Group as a whole. Neither the Agent nor the Arrangers nor any of their directors, officers or employees shall be under any liability for or in respect of any action taken or omitted by any of them in relation to this Agreement save for its or his gross negligence or wilful misconduct.
(G) The Arrangers and the Agent may accept deposits from, lend money to and generally engage in any Finance Documentkind of banking or other business with the Borrower.
(H) It is understood and agreed by each Bank that it has been, and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness and affairs of each of the Obligors, each other member of the Group and the Group as a whole and accordingly each Bank confirms to the Agent and the Arranges that it has not relied, and will not hereafter rely, on the Agent or the Arrangers:
(1) to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by any of the Obligors in connection with this Agreement or the transactions herein contemplated whether or not such information has been or is hereafter circulated to such Bank by the Agent or any of the Arrangers; or
(2) to assess or keep under review on its behalf the financial condition, creditworthiness or affairs of any of the Obligors, any other member of the Group or the Group as a whole.
(I) In acting as agent for the Banks under the Facility Documents the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments and, notwithstanding the foregoing provisions of this Article 24, any information received by some other division or department of the Agent may be treated as confidential and shall not be regarded as having been given to the Agent's agency division, unless the Agent had actual knowledge thereof or as a matter of good faith (XXXX UND GLAUBEN) the Banks could expect that such information would have been passed on to them. Notwithstanding anything to the contrary expressed or implied herein and without prejudice to the provisions of this paragraph (I), the Agent shall not as between itself and the Banks be bound to disclose to any Bank or any other person any information which is supplied by the Obligors to the Agent other than in ist capacity as agent hereunder.
(J) The Agent may (and if so instructed by the Majority Banks, shall) for any reason at any time retire upon not less than forty-five days' written notice to each of the parties hereto of its intention to do so and, if any such notice is given by the Agent, the Agent shall upon the appointment of a successor agent as hereinafter provided for cease to be under any further obligation as Agent hereunder. Following delivery of any such notice, the Majority Banks may appoint a successor agent and if, before the expiry of such notice, such successor agent notifies the parties hereto that it accepts such appointment, (i) each reference herein to "the Agent" shall thereafter be construed as a reference to the successor agent and (ii) the successor agent and the parties hereto other than the retiring Agent shall thereafter have such rights and obligations INTER SE as they would have had if the successor agent had been a party hereto as the Agent. If no successor agent appointed by the Majority Banks notifies the parties hereto, prior to the expiry of the Agent's notice of its intention to retire giving rise to the need to appoint the same, of its acceptance of such appointment, the Agent in consultation with the Borrower may appoint any experienced and reputable bank to be the successor agent and, if it does and such successor agent notifies the parties hereto that it accepts such appointment, (a) each reference herein to "the Agent" shall thereafter be construed as a reference to the successor agent so appointed and (b) the successor agent so appointed and the parties hereto other than the retiring Agent shall thereafter have such rights and obligations INTER SE as they would have if the successor agent so appointed had been named herein as the Agent.
(K) If any Reference Bank shall be prepaid under this Agreement or shall cease to have any Commitment or after the first drawdown cease to have any principal or interest owing to it hereunder, the Agent may in consultation with the Borrower and the Majority Banks appoint a substitute Reference Bank.
(L) The Agent shall be released from the restrictions set out in paragraph 181 of the German Civil Code (BURGERLICHES GESETZBUCH).
Appears in 1 contract
Samples: Facilities Agreement (Wavetek Wandel & Goltermann Inc)
THE AGENT, THE ARRANGERS AND THE BANKS. 33.1 Appointment of the Agent 30.1 Each of the Arrangers Arranger and the Banks each Bank hereby appoints the Agent to act as its agent in connection with the Finance Documents herewith and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms thereof hereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto provided that the Agent shall not start or commence any legal action on behalf of any Bank without such Bank's prior written consent. The Agent shall be released from the restrictions set out in Section 181 of the German Civil Code (Burgerliches Gesetzbuch). The Agent may grant substitute powers of attorney and release any sub-agent from such restrictions and revoke such substitute powers of attorneythereto.
33.2 Agent's Discretions 30.2 The Agent may
30.2.1 assume that:
33.2.1 assume(a) any representation made by an Obligor in connection herewith is true;
(b) no Default has occurred;
(c) the Obligors are not in breach of or default under their obligations hereunder; and
(d) any right, power, authority or discretion vested herein upon an Instructing Group, the Banks or any other person or group of persons has not been exercised, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by an Obligor in connection herewith is true, (b) no Event of Default or Potential Event of Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested hereunder in the Banks or any other person or group of persons has not been exercised;
33.2.2 30.2.2 assume that each Bank's the Facility Office of each Bank is that identified with its signature below (or, in the case of a Transferee, at the end of the Transfer Certificate last notified to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace such its Facility Office and act upon any such notice until the same is superseded by a further such notice;
33.2.3 30.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained;
33.2.4 30.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor upon a certificate signed by or on behalf of such Obligor;
33.2.5 30.2.5 rely upon any communication or document believed by it to be genuine;
33.2.6 notwithstanding Clause 33.1, refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;
33.2.7 refrain from acting in accordance with any instructions of the Majority Banks to begin any legal action or proceeding arising out of or in connection with any Finance Documents until it has received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which it will or may expend or incur in complying with such instructions; and
33.2.8 for the avoidance of doubt, exercise any right, power or discretion vested in it as agent hereunder without a prior written consent of the Majority Banks (as requested hereunder) if the Agent determines, in its absolute discretion, that to acquire such prior written consent would materially impair any rights of the Banks in connection with the Finance Documents or would for any other reason in the best interest of all parties hereto not be feasible.
33.3 Agent's Obligations The Agent shall:
33.3.1 promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an Obligor under any Finance Document;
33.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor in the due performance of or compliance with its obligations under any Finance Document of which the Agent has notice from any other party hereto;
33.3.3 save as otherwise provided herein, act as agent hereunder in accordance with any instructions given to it by the Majority Banks, which instructions shall be binding on the Arrangers and the Banks; and
33.3.4 if so instructed by the Majority Banks, refrain from exercising, and in exercising its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any right, power or discretion vested in it as agent under any Finance Document. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
33.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor the Arrangers shall:
33.4.1 be bound to enquire as to (a) whether or not any representation made by an Obligor in connection herewith is true, (b) the occurrence or otherwise of any Event of Default or Potential Event of Default, (c) the performance by an Obligor of its obligations hereunder or (d) any breach of or default by an Obligor of or under its obligations hereunder;
33.4.2 be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
33.4.3 be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arrangers, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit of any person;
33.4.4 be under any obligations other than those for which express provision is made in any Finance Document; or
Appears in 1 contract
Samples: Multicurrency Revolving Credit and Sterling Acceptance Facility Agreement (Mbna Corp)
THE AGENT, THE ARRANGERS AND THE BANKS. 33.1 Appointment of the Agent (A) Each of the Arrangers and the Banks Bank hereby appoints the Agent to act as its agent in connection with the Finance Documents herewith and authorises authorizes the Agent to exercise such rights, powers, authorities powers and discretions as are specifically delegated to the Agent by the terms thereof hereof together with all such rights, powers, authorities powers and discretions as are reasonably incidental thereto provided that the Agent shall not start or commence any legal action on behalf of any Bank without such Bank's prior written consent. The Agent shall be released from the restrictions set out in Section 181 of the German Civil Code (Burgerliches Gesetzbuch). The Agent may grant substitute powers of attorney and release any sub-agent from such restrictions and revoke such substitute powers of attorneythereto.
33.2 Agent's Discretions The (B) When acting in connection with this Agreement, the Agent may:
33.2.1 assume, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, (1) assume that (a) any representation made or deemed to be made by an Obligor in connection herewith is true, (b) no Event of Default Early Repayment and no event which with the giving of notice, lapse of time or Potential fulfilment of any other condition would or might constitute an Event of Default Early Repayment has occurred, (c) no Obligor occurred and that none of the Obligors is in breach of or default under its respective obligations under the Finance Documents and hereunder unless it has received express notice thereof from any party hereto or (d) any right, power, authority or discretion vested hereunder in the Banks or any other person or group case of persons has not been exerciseda payment default hereunder) gained actual knowledge thereof;
33.2.2 (2) assume that each Bank's Facility Lending Office is that identified with its signature below (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some any other office of such Bank to replace such Facility as its Lending Office and act upon any such notice until the same is superseded by a further such notice;
33.2.3 (3) engage and pay for the advice or services of any experienced lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained;
33.2.4 (4) rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor any of the Obligors upon a certificate signed by or on behalf of such Obligor;
33.2.5 (5) rely upon any communication or document believed by it to be genuine;
33.2.6 notwithstanding Clause 33.1, (6) refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks as to whether or not the manner in which such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;
33.2.7 (7) refrain from acting in accordance with any instructions of the Majority Banks to begin any legal action or proceeding arising out of or in connection with any Finance Documents this Agreement until it has shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT value added tax or similar tax thereon which it will or may expend or incur in complying with such instructions;
(8) if it is unable to obtain instructions or communicate with a Bank after making reasonable attempts to do so, either refrain from acting as Agent on behalf of such Bank or take such action on behalf of such Bank as it in its absolute discretion deems appropriate and shall not be liable to such Bank as a result of any such action or inaction (save in the case of gross negligence or wilful misconduct); and
33.2.8 for the avoidance of doubt, exercise (9) refrain from acting in accordance with any right, power or discretion vested in it as agent hereunder without a prior written consent instructions of the Majority Banks (as requested hereunder) if the Agent determines, in its absolute discretion, that reasonable opinion they are contrary to acquire such prior written consent would materially impair any rights of the Banks in connection with the Finance Documents or would for any other reason in the best interest of all parties hereto not be feasibleapplicable law.
33.3 Agent's Obligations (C) The Agent shall:
33.3.1 (1) promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an Obligor under any Finance Documentof the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations of all the Banks hereunder;
33.3.2 (2) promptly notify each Bank of the occurrence of any Event of Default Early Repayment or any default by event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Obligor in Event of Early Repayment or any failure of any of the due performance of or compliance with Obligors duly to perform its respective obligations under any Finance Document this Agreement of which the Agent has received express notice from any other party heretohereto or (in the case of a payment default hereunder) gained actual knowledge;
33.3.3 save (3) subject as otherwise provided hereinherein provided, act as agent hereunder in accordance with any instructions given to it by the Majority BanksBanks and, which instructions shall be binding on the Arrangers and the Banks; and
33.3.4 if so instructed by the Majority Banks, refrain from exercising, and in exercising its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any a right, power or discretion vested in it as agent under any Finance Document. The Agent's duties under the Finance Documents are solely mechanical and administrative in naturehereunder.
33.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the (D) The Agent nor the Arrangers shallshall not:
33.4.1 (1) be bound to enquire as to (a) whether or not any representation made by an Obligor in connection herewith is true, (b) the occurrence or otherwise of any Event of Default Early Repayment (unless a payment default has occurred hereunder or Potential the Agent has been informed in writing by a Bank describing in reasonable detail an occurrence of an event which is expressly stated to be an Event of Default, (cEarly Repayment) or any event which with the performance by giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Obligor Event of Early Repayment or as to any failure of any of the Obligors duly to perform its obligations hereunder or (d) any breach of or default by an Obligor of or under its respective obligations hereunder;
33.4.2 (2) be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
33.4.3 (3) initiate any legal proceedings on behalf of any Bank unless specifically authorized by such Bank to do so, but the failure of any Bank to give such authorization shall not limit the right of the Agent to do so on behalf of any other Bank;
(4) be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to Obligors received by the Agent or, as the case may be, the Arrangers, that such information was confidential or (b) if such disclosure would or might in its the opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable at the suit of by any person;; or
33.4.4 (5) be under any fiduciary duty towards any Bank or under any obligations other than those for which express provision is made herein.
(E) Each Bank shall indemnify the Agent in the proportion its share of the Loan bears to the amount of the Loan or, as the case may be, the amount of its Commitment bears to the Total Commitments at the time any such instructions are given, against any and all costs, claims, expenses (including legal fees) and liabilities which the Agent may incur in complying with any instructions received by it from the Banks insofar as such expenses are not punctually reimbursed by the Obligors pursuant to the terms hereof except routine administrative costs and expenses of the Agent or to the extent that these costs, claims, expenses and liabilities are sustained or incurred as a result of the gross negligence or wilful misconduct of the Agent or any of its personnel or agents.
(F) Each Bank agrees that neither the Agent nor the Arrangers shall be responsible for the accuracy and completeness of any representations made (whether orally or otherwise) herein or in connection herewith, for the validity, effectiveness, adequacy or enforceability of this
(G) The Arrangers and the Agent may accept deposits from, lend money to and generally engage in any Finance Documentkind of banking or other business with the Borrower.
(H) It is understood and agreed by each Bank that it has been, and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness and affairs of each of the Obligors, each other member of the Group and the Group as a whole and accordingly each Bank confirms to the Agent and the Arranges that it has not relied, and will not hereafter rely, on the Agent or the Arrangers:
(1) to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by any of the Obligors in connection with this Agreement or the transactions herein contemplated whether or not such information has been or is hereafter circulated to such Bank by the Agent or any of the Arrangers; or
(2) to assess or keep under review on its behalf the financial condition, creditworthiness or affairs of any of the Obligors, any other member of the Group or the Group as a whole.
(I) In acting as agent for the Banks under the Facility Documents the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments and, notwithstanding the foregoing provisions of this Article 24, any information received by some other division or department of the Agent may be treated as confidential and shall not be regarded as having been given to the Agent's agency division, unless the Agent had actual knowledge thereof or as a matter of good faith (XXXX UND GLAUBEN) the Banks could expect that such information would have been passed on to them. Notwithstanding anything to the contrary expressed or implied herein and without prejudice to the provisions of this paragraph (I), the Agent shall not as between itself and the Banks be bound to disclose to any Bank or any other person any information which is supplied by the Obligors to the Agent other than in ist capacity as agent hereunder.
(J) The Agent may (and if so instructed by the Majority Banks, shall) for any reason at any time retire upon not less than forty-five days' written notice to each of the parties hereto of its intention to do so and, if any such notice is given by the Agent, the Agent shall upon the appointment of a successor agent as hereinafter provided for cease to be under any further obligation as Agent hereunder. Following delivery of any such notice, the Majority Banks may appoint a successor agent and if, before the expiry of such notice, such successor agent notifies the parties hereto that it accepts such appointment, (i) each reference herein to "the Agent" shall thereafter be construed as a reference to the successor agent and (ii) the successor agent and the parties hereto other than the retiring Agent shall thereafter have such rights and obligations INTER SE as they would have had if the successor agent had been a party hereto as the Agent. If no successor agent appointed by the Majority Banks notifies the parties hereto, prior to the expiry of the Agent's notice of its intention to retire giving rise to the need to appoint the same, of its acceptance of such appointment, the Agent in consultation with the Borrower may appoint any experienced and reputable bank to be the successor agent and, if it does and such successor agent notifies the parties hereto that it accepts such appointment, (a) each reference herein to "the Agent" shall thereafter be construed as a reference to the successor agent so appointed and (b) the successor agent so appointed and the parties hereto other than the retiring Agent shall thereafter have such rights and obligations INTER SE as they would have if the successor agent so appointed had been named herein as the Agent.
(K) If any Reference Bank shall be prepaid under this Agreement or shall cease to have any Commitment or after the first drawdown cease to have any principal or interest owing to it hereunder, the Agent may in consultation with the Borrower and the Majority Banks appoint a substitute Reference Bank.
(L) The Agent shall be released from the restrictions set out in paragraph 181 of the German Civil Code (BURGERLICHES GESETZBUCH).
Appears in 1 contract
Samples: Facilities Agreement (Wavetek Wandel & Goltermann Inc)
THE AGENT, THE ARRANGERS AND THE BANKS. 33.1 Appointment of the Agent 29.1 Each of the Arrangers Arranger and the Banks each Bank hereby appoints the Agent to act as its agent in connection with the Finance Documents herewith and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms thereof hereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto provided that the Agent shall not start or commence any legal action on behalf of any Bank without such Bank's prior written consent. The Agent shall be released from the restrictions set out in Section 181 of the German Civil Code (Burgerliches Gesetzbuch). The Agent may grant substitute powers of attorney and release any sub-agent from such restrictions and revoke such substitute powers of attorneythereto.
33.2 Agent's Discretions 29.2 The Agent may:
33.2.1 assume29.2.1 assume that:
(a) any representation made by an Obligor in connection herewith is true;
(b) no Default has occurred;
(c) the Obligors are not in breach of or default under their obligations hereunder; and
(d) any right, power, authority or discretion vested herein upon an Instructing Group, the Banks or any other person or group of persons has not been exercised, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by an Obligor in connection herewith is true, (b) no Event of Default or Potential Event of Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested hereunder in the Banks or any other person or group of persons has not been exercised;
33.2.2 29.2.2 assume that each Bank's the Facility Office of each Bank is that identified with its signature below (or, in the case of a Transferee, at the end of the Transfer Certificate last notified to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace such its Facility Office and act upon any such notice until the same is superseded by a further such notice;
33.2.3 29.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained;
33.2.4 29.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor upon a certificate signed by or on behalf of such Obligor;
33.2.5 29.2.5 rely upon any communication or document believed by it to be genuine;
33.2.6 notwithstanding Clause 33.129.2.6 save as otherwise provided herein, refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks an Instructing Group as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;; and
33.2.7 29.2.7 refrain from acting in accordance with any instructions of the Majority Banks an Instructing Group to begin any legal action or proceeding arising out of or in connection with any Finance Documents this Agreement until it has shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which it will or may expend or incur in complying with such instructions; and
33.2.8 for the avoidance of doubt, exercise any right, power or discretion vested in it as agent hereunder without a prior written consent of the Majority Banks (as requested hereunder) if the Agent determines, in its absolute discretion, that to acquire such prior written consent would materially impair any rights of the Banks in connection with the Finance Documents or would for any other reason in the best interest of all parties hereto not be feasible.
33.3 Agent's Obligations 29.3 The Agent shall:
33.3.1 29.3.1 promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an either Obligor under any Finance Documenthereunder;
33.3.2 29.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor the Borrower in the due performance of or compliance with its obligations under any Finance Document this Agreement of which the Agent has express notice from any other party hereto;
33.3.3 29.3.3 save as otherwise provided herein, act as agent hereunder in accordance with any instructions given to it by the Majority Banksan Instructing Group, which instructions shall be binding on all of the Arrangers and the Banks; and
33.3.4 29.3.4 save as otherwise provided herein, if so instructed by the Majority Banksan Instructing Group, refrain from exercising, and in exercising its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any right, power or discretion vested in it as agent under any Finance Document. The Agent's duties under the Finance Documents are solely mechanical and administrative in naturehereunder.
33.4 Excluded Obligations 29.4 Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor any of the Arrangers shall:
33.4.1 29.4.1 be bound to enquire as to to:
(a) whether or not any representation made by an Obligor in connection herewith is true, ;
(b) the occurrence or otherwise of any Event of Default or Potential Event of Default, ;
(c) the performance by an Obligor the Obligors of its their obligations hereunder or hereunder; or
(d) any breach of or default by an Obligor of or under its obligations hereunder;
33.4.2 29.4.2 be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
33.4.3 29.4.3 be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arrangers, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or regulation or be otherwise actionable at the suit of any person;; or
33.4.4 29.4.4 be under any obligations other than those for which express provision is made herein.
29.5 Each Bank shall, in its Proportion, from time to time on demand by the Agent, indemnify the Agent, against any and all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which the Agent may incur, otherwise than by reason of its own gross negligence or wilful misconduct, in acting in its capacity as agent hereunder.
29.6 Neither the Agent and the Arrangers nor any of them accepts any responsibility for the accuracy and/or completeness of any information supplied by the Borrower in connection herewith or for the legality, validity, effectiveness, adequacy or enforceability of this Agreement or any related document and neither the Agent and the Arrangers nor any of them shall be under any liability as a result of taking or omitting to take any action in relation to this Agreement or any related document, save in the case of gross negligence or wilful misconduct.
29.7 Each of the Banks agrees that it will not assert or seek to assert against any director, officer, employee or agent of the Agent or any Arranger any claim it might have against any of them in respect of the matters referred to in Clause 29.6. Any director, officer, employee or agent of the Agent or an Arranger may rely on this Clause 29.7 and enforce its terms under the Contracts (Rights of Third Parties) Xxx 0000.
29.8 The Agent and each of the Arrangers may accept deposits from, lend money to and generally engage in any Finance Documentkind of banking or other business with each Obligor or any of its respective related entities.
29.9 The Agent may resign its appointment hereunder at any time without assigning any reason therefor by giving not less than thirty days' prior written notice to that effect to each of the other parties hereto provided that no such resignation shall be effective until a successor for the Agent is appointed in accordance with the succeeding provisions of this Clause 29 and has accepted such appointment in writing.
29.10 If the Agent gives notice of its resignation pursuant to Clause 29.9, then any reputable and experienced bank or other financial institution may (with the prior consent of the Borrower, such consent not to be unreasonably withheld provided that it is understood that such consent may be withheld in relation to a bank or financial institution whose primary business is similar to or in direct competition with that of the Group) be appointed as a successor to the Agent by an Instructing Group during the period of such notice but, if no such successor is so appointed, the Agent may appoint such a successor itself.
29.11 If a successor to the Agent is appointed under the provisions of Clause 29.10, then upon such successor's acceptance of such appointment (i) the retiring Agent shall be discharged from any further obligation hereunder but shall remain entitled to the benefit of the provisions of this Clause 29 and (ii) its successor and each of the other parties hereto shall have the same rights and obligations amongst themselves as they would have had if such successor had been a party hereto.
29.12 It is understood and agreed by each Bank that it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness, condition, affairs, status and nature of the Obligors and, accordingly, each Bank warrants to the Agent and the Arrangers that it has not relied on and will not hereafter rely on the Agent and the Arrangers nor any of them:
29.12.1 to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by the Borrower in connection with this Agreement or the transactions herein contemplated (whether or not such information has been or is hereafter circulated to such Bank by the Agent and the Arrangers or any of them); or
29.12.2 to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Obligors.
29.13 In acting as Agent for the Banks, the Agent's agency division shall be treated as a separate entity from any other of its divisions or departments and, notwithstanding the foregoing provisions of this Clause 29, in the event that the Agent should act for either Obligor in any capacity in relation to any other matter, any information given by either Obligor to the Agent in such other capacity may be treated as confidential by the Agent.
29.14 Nothing in this Agreement will oblige the Agent or the Arranger to satisfy any know your customer requirement in relation to the identity of any person on behalf of any Finance Party.
29.15 Each Finance Party confirms to the Agent and each Arranger that it is solely responsible for any know your customer requirement it is required to carry out and that it may not rely on any statement in relation to those requirements made by any other person.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Mbna Corp)
THE AGENT, THE ARRANGERS AND THE BANKS. 33.1 Appointment of the Agent 28.1 Each of the Arrangers Arranger and the Banks each Bank hereby appoints the Agent to act as its agent in connection with the Finance Documents herewith and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms thereof hereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto provided that the Agent shall not start or commence any legal action on behalf of any Bank without such Bank's prior written consent. The Agent shall be released from the restrictions set out in Section 181 of the German Civil Code (Burgerliches Gesetzbuch). The Agent may grant substitute powers of attorney and release any sub-agent from such restrictions and revoke such substitute powers of attorneythereto.
33.2 Agent's Discretions 28.2 The Agent may:
33.2.1 assume(i) assume that:
(a) any representation made by the Borrower in connection herewith is true;
(b) no Default has occurred;
(c) the Borrower is not in breach of or default under its obligations hereunder; and
(d) any right, power, authority or discretion vested herein upon an Instructing Group, the Banks or any other person or group of persons has not been exercised, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by an Obligor in connection herewith is true, (b) no Event of Default or Potential Event of Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested hereunder in the Banks or any other person or group of persons has not been exercised;
33.2.2 (ii) assume that each Bank's the Facility Office of each Bank is that identified with its signature below (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace such its Facility Office and act upon any such notice until the same is superseded by a further such notice;
33.2.3 (iii) engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained;
33.2.4 (iv) rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor the Borrower upon a certificate signed by or on behalf of such Obligorthe Borrower;
33.2.5 (v) rely upon any communication or document believed by it to be genuine;
33.2.6 notwithstanding Clause 33.1(vi) save as otherwise provided herein, refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;an
33.2.7 (vii) refrain from acting in accordance with any instructions of the Majority Banks an Instructing Group to begin any legal action or proceeding arising out of or in connection with any Finance Documents this Agreement until it has shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which it will or may expend or incur in complying with such instructions; and
33.2.8 for the avoidance of doubt, exercise any right, power or discretion vested in it as agent hereunder without a prior written consent of the Majority Banks (as requested hereunder) if the Agent determines, in its absolute discretion, that to acquire such prior written consent would materially impair any rights of the Banks in connection with the Finance Documents or would for any other reason in the best interest of all parties hereto not be feasible.
33.3 Agent's Obligations 28.3 The Agent shall:
33.3.1 (i) promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an Obligor under any Finance Documentthe Borrower hereunder;
33.3.2 (ii) promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor the Borrower in the due performance of or compliance with its obligations under any Finance Document this Agreement of which the Agent has express notice from any other party hereto;
33.3.3 (iii) save as otherwise provided herein, act as agent hereunder in accordance with any instructions given to it by the Majority Banksan Instructing Group, which instructions shall be binding on all of the Arrangers and the Banks; and
33.3.4 (iv) save as otherwise provided herein, if so instructed by the Majority Banksan Instructing Group, refrain from exercising, and in exercising its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any right, power or discretion vested in it as agent under any Finance Document. The Agent's duties under the Finance Documents are solely mechanical and administrative in naturehereunder.
33.4 Excluded Obligations 28.4 Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor any of the Arrangers shall:
33.4.1 (i) be bound to enquire as to to:
(a) whether or not any representation made by an Obligor the Borrower in connection herewith is true, ;
(b) the occurrence or otherwise of any Event of Default or Potential Event of Default, ;
(c) the performance by an Obligor the Borrower of its obligations hereunder or hereunder; or
(d) any breach of or default by an Obligor the Borrower of or under its obligations hereunder;
33.4.2 (ii) be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
33.4.3 (iii) be bound to disclose to any other person any information relating to any member of the Group if any
(aiv) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arrangers, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit of any person;
33.4.4 be under any obligations other than those for which express provision is made herein.
28.5 Each Bank shall, in its Proportion, from time to time on demand by the Agent, indemnify the Agent, against any and all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which the Agent may incur, otherwise than by reason of its own gross negligence or wilful misconduct, in acting in its capacity as agent hereunder.
28.6 Neither the Agent and the Arrangers nor any of them accepts any responsibility for the accuracy and/or completeness of any information supplied by the Borrower in connection herewith or for the legality, validity, effectiveness, adequacy or enforceability of this Agreement or any related document and neither the Agent and the Arrangers nor any of them shall be under any liability as a result of taking or omitting to take any action in relation to this Agreement or any related document, save in the case of gross negligence or wilful misconduct.
28.7 Each of the Banks agrees that it will not assert or seek to assert against any director, officer or employee of the Agent or any Arranger any claim it might have against any of them in respect of the matters referred to in Clause 28.6.
28.8 The Agent and each of the Arrangers may accept deposits from, lend money to and generally engage in any Finance Documentkind of banking or other business with the Borrower or any of its related entities.
28.9 The Agent may resign its appointment hereunder at any time without assigning any reason therefor by giving not less than thirty days' prior written notice to that effect to each of the other parties hereto Provided that no such resignation shall be effective until a successor for the Agent is appointed in accordance with the succeeding provisions of this Clause 28 and has accepted such appointment in writing.
28.10 If the Agent gives notice of its resignation pursuant to Clause 28.9, then any reputable and experienced bank or other financial institution may (with the prior consent of the Borrower, such consent not to be unreasonably withheld Provided that it is understood that such consent may be withheld in relation to a bank or financial institution whose primary business is similar to or in direct competition with that of the Group) be appointed as a successor to the Agent by an Instructing Group during the period of such notice but, if no such successor is so appointed, the Agent may appoint such a successor itself.
28.11 If a successor to the Agent is appointed under the provisions of Clause 28.10, then upon such successor's acceptance of such appointment (i) the retiring Agent shall be discharged from any further obligation hereunder but shall remain entitled to the benefit of the provisions of this Clause 28 and (ii) its successor and each of the other parties hereto shall have the same rights and obligations amongst themselves as they would have had if such successor had been a party hereto.
28.12 It is understood and agreed by each Bank that it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness, condition, affairs, status and nature of the Borrower and, accordingly, each Bank warrants to the Agent and the Arrangers that it has not relied on and will not hereafter rely on the Agent and the Arrangers nor any of them:
(i) to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by the Borrower in connection with this Agreement or the transactions herein contemplated (whether or not such information has been or is hereafter circulated to such Bank by the Agent and the Arrangers or any of them); or
(ii) to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Borrower.
28.13 In acting as Agent for the Banks, the Agent's agency division shall be treated as a separate entity from any other of its divisions or departments and, notwithstanding the foregoing provisions of this Clause 28, in the event that the Agent should act for the Borrower in any capacity in relation to any other matter, any information given by the Borrower to the Agent in such other capacity may be treated as confidential by the Agent.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Mbna Corp)
THE AGENT, THE ARRANGERS AND THE BANKS. 33.1 26.1 Appointment of the Agent Each of the The Arrangers and each of the Banks hereby appoints the Agent to act as its agent in connection with the Finance Documents herewith and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms thereof hereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto provided that the Agent shall not start or commence any legal action on behalf of any Bank without such Bank's prior written consent. The Agent shall be released from the restrictions set out in Section 181 of the German Civil Code (Burgerliches Gesetzbuch). The Agent may grant substitute powers of attorney and release any sub-agent from such restrictions and revoke such substitute powers of attorneythereto.
33.2 26.2 Agent's Discretions The Agent may:
33.2.1 26.2.1 assume, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by an Obligor in connection herewith with the Finance Documents is true, (b) no Event of Default or Potential Event of Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested hereunder in therein upon the Majority Banks, the Banks or any other person or group of persons has not been exercised;
33.2.2 26.2.2 assume that each Bank's the Facility Office of each Bank is that identified with its signature below notified to it by such Bank in writing prior to the date hereof (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace such its Facility Office and act upon any such notice until the same is superseded by a further such notice;
33.2.3 26.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained;
33.2.4 26.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor upon a certificate signed by or on behalf of such Obligor;
33.2.5 26.2.5 rely upon any communication or document believed by it to be genuine;
33.2.6 notwithstanding Clause 33.1, 26.2.6 refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;
33.2.7 26.2.7 refrain from acting in accordance with any instructions of the Majority Banks to begin any legal action or proceeding arising out of or in connection with any the Finance Documents until it has shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which it will or may expend or incur in complying with such instructions; and
33.2.8 for 26.2.8 assume (unless it has specific notice to the avoidance contrary) that any notice or request made by the Account Party is made on behalf of doubt, exercise any right, power or discretion vested in it as agent hereunder without a prior written consent of the Majority Banks (as requested hereunder) if the Agent determines, in its absolute discretion, that to acquire such prior written consent would materially impair any rights of the Banks in connection with the Finance Documents or would for any other reason in the best interest of all parties hereto not be feasibleboth Obligors.
33.3 26.3 Agent's Obligations The Agent shall:
33.3.1 26.3.1 promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an Obligor under any the Finance DocumentDocuments and shall promptly deliver to each Bank a copy of each Letter of Credit delivered to Lloyd's pursuant to Clause 3.3 (Completion of Letters of Credit);
33.3.2 26.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor in the due performance of or compliance with its obligations under any the Finance Document Documents of which the Agent has notice from any other party hereto;
33.3.3 26.3.3 save as otherwise provided herein, act as agent hereunder under the Finance Documents in accordance with any instructions given to it by the an Majority Banks, which instructions shall be binding on the Arrangers and the Banks; and
33.3.4 26.3.4 if so instructed by the Majority Banks, refrain from exercising, and in exercising its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any right, power or discretion vested in it as agent under any the Finance DocumentDocuments. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
33.4 26.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor the Arrangers shall:
33.4.1 26.4.1 be bound to enquire as to (a) whether or not any representation made or deemed to be made by an Obligor in connection herewith with the Finance Documents is true, (b) the occurrence or otherwise of any Event of Default or Potential Event of Default, (c) the performance by an Obligor of its obligations hereunder under the Finance Documents or (d) any breach of or default by an Obligor of or under its obligations hereunderunder the Finance Documents;
33.4.2 26.4.2 be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
33.4.3 26.4.3 be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arrangers, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit of any person;
33.4.4 26.4.4 be under any obligations other than those for which express provision is made in any Finance Documentherein; or
26.4.5 be or be deemed to be a fiduciary for any other party hereto.
26.5 Indemnification Each Bank shall, in its Proportion, from time to time on demand by the Agent, indemnify the Agent against any and all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which the Agent may incur, otherwise than by reason of its own gross negligence or wilful misconduct, in acting in its capacity as agent hereunder (other than any which have been reimbursed by the Account Party pursuant to Clause 21.1 Company's Indemnity).
Appears in 1 contract
Samples: Exhibit (Ace LTD)
THE AGENT, THE ARRANGERS AND THE BANKS. 33.1 25.1 Appointment of the Agent Each of the The Arrangers and each of the Banks hereby appoints the Agent to act as its agent in connection with the Finance Documents herewith and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms thereof hereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto provided that the Agent shall not start or commence any legal action on behalf of any Bank without such Bank's prior written consent. The Agent shall be released from the restrictions set out in Section 181 of the German Civil Code (Burgerliches Gesetzbuch). The Agent may grant substitute powers of attorney and release any sub-agent from such restrictions and revoke such substitute powers of attorneythereto.
33.2 25.2 Agent's Discretions The Agent may:
33.2.1 25.2.1 assume, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by an Obligor in connection herewith with the Finance Documents is true, (b) no Event of Default or Potential Event of Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested hereunder in therein upon the Majority Banks, the Banks or any other person or group of persons has not been exercised;
33.2.2 25.2.2 assume that each Bank's the Facility Office of each Bank is that identified with its signature below notified to it by such Bank in writing prior to the date hereof (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace such its Facility Office and act upon any such notice until the same is superseded by a further such notice;
33.2.3 25.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained;
33.2.4 25.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor upon a certificate signed by or on behalf of such Obligor;
33.2.5 25.2.5 rely upon any communication or document believed by it to be genuine;
33.2.6 notwithstanding Clause 33.1, 25.2.6 refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;
33.2.7 25.2.7 refrain from acting in accordance with any instructions of the Majority Banks to begin any legal action or proceeding arising out of or in connection with any the Finance Documents until it has shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which it will or may expend or incur in complying with such instructions; and
33.2.8 for 25.2.8 assume (unless it has specific notice to the avoidance contrary) that any notice or request made by the Account Party is made on behalf of doubt, exercise any right, power or discretion vested in it as agent hereunder without a prior written consent of the Majority Banks (as requested hereunder) if the Agent determines, in its absolute discretion, that to acquire such prior written consent would materially impair any rights of the Banks in connection with the Finance Documents or would for any other reason in the best interest of all parties hereto not be feasibleboth Obligors.
33.3 25.3 Agent's Obligations The Agent shall:
33.3.1 25.3.1 promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an Obligor under any the Finance DocumentDocuments and shall promptly deliver to each Bank a copy of each Letter of Credit delivered to Lloyd's pursuant to Clause 3.3 (Completion of Letters of Credit);
33.3.2 25.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor in the due performance of or compliance with its obligations under any the Finance Document Documents of which the Agent has notice from any other party hereto;
33.3.3 25.3.3 save as otherwise provided herein, act as agent hereunder under the Finance Documents in accordance with any instructions given to it by the an Majority Banks, which instructions shall be binding on the Arrangers and the Banks; and
33.3.4 25.3.4 if so instructed by the Majority Banks, refrain from exercising, and in exercising its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any right, power or discretion vested in it as agent under any the Finance DocumentDocuments. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
33.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor the Arrangers shall:
33.4.1 be bound to enquire as to (a) whether or not any representation made by an Obligor in connection herewith is true, (b) the occurrence or otherwise of any Event of Default or Potential Event of Default, (c) the performance by an Obligor of its obligations hereunder or (d) any breach of or default by an Obligor of or under its obligations hereunder;
33.4.2 be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
33.4.3 be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arrangers, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit of any person;
33.4.4 be under any obligations other than those for which express provision is made in any Finance Document; or
Appears in 1 contract
