THE AGENT, THE ARRANGERS AND THE BANKS. (A) Each Bank hereby appoints the Agent to act as its agent in connection herewith and authorizes the Agent to exercise such rights, powers and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers and discretions as are reasonably incidental thereto. (B) When acting in connection with this Agreement, the Agent may: (1) assume that no Event of Early Repayment and no event which with the giving of notice, lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment has occurred and that none of the Obligors is in breach of or default under its respective obligations hereunder unless it has received express notice thereof from any party hereto or (in the case of a payment default hereunder) gained actual knowledge thereof; (2) assume that each Bank's Lending Office is that identified with its signature below until it has received from such Bank notice designating any other office of such Bank as its Lending Office and act upon any such notice until the same is superseded by a further such notice; (3) engage and pay for the advice or services of any experienced lawyers, accountants, surveyors or other experts whose advice or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 necessary, expedient or desirable and rely upon any advice so obtained; (4) rely as to any matters of fact which might reasonably be expected to be within the knowledge of any of the Obligors upon a certificate signed by or on behalf of such Obligor; (5) rely upon any communication or document believed by it to be genuine; (6) refrain from exercising any right, power or discretion vested in it hereunder unless and until instructed by the Majority Banks as to the manner in which such right, power or discretion should be exercised; (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 this Agreement until it shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, expenses (including legal fees) and liabilities together with any 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 (9) refrain from acting in accordance with any instructions of the Majority Banks if in its reasonable opinion they are contrary to applicable law. (C) The Agent shall: (1) promptly inform each Bank of the contents of any notice or document received by it from any of the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations of all the Banks hereunder; (2) promptly notify each Bank of the occurrence of any Event of Early Repayment or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or any failure of any of the Obligors duly to perform its respective obligations under this Agreement of which the Agent has received express notice from any party hereto or (in the case of a payment default hereunder) gained actual knowledge; (3) subject as herein provided, act in accordance with any instructions given to it by the Majority Banks and, if so instructed by the Majority Banks, refrain from exercising a right, power or discretion vested in it hereunder. (D) The Agent shall not: (1) be bound to enquire as to the occurrence or otherwise of any Event of Early Repayment (unless a payment default has occurred hereunder or 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 Early Repayment) or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or as to any failure of any of the Obligors duly to perform its respective obligations hereunder; (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; (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 of the Obligors received by the Agent if such disclosure would or might in the opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable by any person; or (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 kind 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 (▇▇▇▇ 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
Sources: Facilities Agreement (Wavetek Wandel & Goltermann Inc)
THE AGENT, THE ARRANGERS AND THE BANKS. (A) 30.1 Each Arranger and each Bank hereby appoints the Agent to act as its agent in connection herewith and authorizes authorises the Agent to exercise such rights, powers powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers powers, authorities and discretions as are reasonably incidental thereto.
(B) When acting in connection with this Agreement, the 30.2 The Agent may
30.2.1 assume that:
(1a) assume that any representation made by an Obligor in connection herewith is true;
(b) no Event of Early Repayment and no event which with the giving of notice, lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment Default has occurred and that none of occurred;
(c) the Obligors is are not in breach of or default under its respective their obligations hereunder 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 has, in its capacity as agent for the Banks, received express notice thereof to the contrary from any other party hereto or (in the case of a payment default hereunder) gained actual knowledge thereofhereto;
(2) 30.2.2 assume that the Facility Office of each Bank's Lending Office Bank is that identified with its signature below last notified to it until it has received from such Bank a notice designating any some other office of such Bank as to replace its Lending Facility Office and act upon any such notice until the same is superseded by a further such notice;
(3) 30.2.3 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 necessary, expedient or desirable and rely upon any advice so obtained;
(4) 30.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of any of the Obligors an Obligor upon a certificate signed by or on behalf of such Obligor;
(5) 30.2.5 rely upon any communication or document believed by it to be genuine;
(6) refrain from exercising any right, power or discretion vested in it hereunder unless and until instructed by the Majority Banks as to the manner in which such right, power or discretion should be exercised;
(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 this Agreement until it shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, expenses (including legal fees) and liabilities together with any 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
(9) refrain from acting in accordance with any instructions of the Majority Banks if in its reasonable opinion they are contrary to applicable law.
(C) The Agent shall:
(1) promptly inform each Bank of the contents of any notice or document received by it from any of the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations of all the Banks hereunder;
(2) promptly notify each Bank of the occurrence of any Event of Early Repayment or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or any failure of any of the Obligors duly to perform its respective obligations under this Agreement of which the Agent has received express notice from any party hereto or (in the case of a payment default hereunder) gained actual knowledge;
(3) subject as herein provided, act in accordance with any instructions given to it by the Majority Banks and, if so instructed by the Majority Banks, refrain from exercising a right, power or discretion vested in it hereunder.
(D) The Agent shall not:
(1) be bound to enquire as to the occurrence or otherwise of any Event of Early Repayment (unless a payment default has occurred hereunder or 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 Early Repayment) or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or as to any failure of any of the Obligors duly to perform its respective obligations hereunder;
(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;
(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 of the Obligors received by the Agent if such disclosure would or might in the opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable by any person; or
(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 kind 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 (▇▇▇▇ 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
Sources: Multicurrency Revolving Credit and Sterling Acceptance Facility Agreement (Mbna Corp)
THE AGENT, THE ARRANGERS AND THE BANKS. (A) Each Bank hereby appoints the Agent to act as its agent in connection herewith and authorizes the Agent to exercise such rights, powers and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers and discretions as are reasonably incidental thereto.
(B) When acting in connection with this Agreement, the Agent may:
(1) assume that no Event of Early Repayment and no event which with the giving of notice, lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment has occurred and that none of the Obligors is in breach of or default under its respective obligations hereunder unless it has received express notice thereof from any party hereto or (in the case of a payment default hereunder) gained actual knowledge thereof;
(2) assume that each Bank's Lending Office is that identified with its signature below until it has received from such Bank notice designating any other office of such Bank as its Lending Office and act upon any such notice until the same is superseded by a further such notice;
(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 necessary, expedient or desirable and rely upon any advice so obtained;
(4) rely as to any matters of fact which might reasonably be expected to be within the knowledge of any of the Obligors upon a certificate signed by or on behalf of such Obligor;
(5) rely upon any communication or document believed by it to be genuine;
(6) refrain from exercising any right, power or discretion vested in it hereunder unless and until instructed by the Majority Banks as to the manner in which such right, power or discretion should be exercised;
(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 this Agreement until it shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, expenses (including legal fees) and liabilities together with any 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
(9) refrain from acting in accordance with any instructions of the Majority Banks if in its reasonable opinion they are contrary to applicable law.
(C) The Agent shall:
(1) promptly inform each Bank of the contents of any notice or document received by it from any of the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations of all the Banks hereunder;
(2) promptly notify each Bank of the occurrence of any Event of Early Repayment or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or any failure of any of the Obligors duly to perform its respective obligations under this Agreement of which the Agent has received express notice from any party hereto or (in the case of a payment default hereunder) gained actual knowledge;
(3) subject as herein provided, act in accordance with any instructions given to it by the Majority Banks and, if so instructed by the Majority Banks, refrain from exercising a right, power or discretion vested in it hereunder.
(D) The Agent shall not:
(1) be bound to enquire as to the occurrence or otherwise of any Event of Early Repayment (unless a payment default has occurred hereunder or 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 Early Repayment) or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or as to any failure of any of the Obligors duly to perform its respective obligations hereunder;
(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;
(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 of the Obligors received by the Agent if such disclosure would or might in the opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable by any person; or
(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 thisthis 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 kind 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 (▇▇▇▇ 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
Sources: Facilities Agreement (Wavetek Wandel & Goltermann Inc)
THE AGENT, THE ARRANGERS AND THE BANKS. (A) 33.1 Appointment of the Agent Each Bank of the Arrangers and the Banks hereby appoints the Agent to act as its agent in connection herewith with the Finance Documents and authorizes authorises the Agent to exercise such rights, powers powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof thereof together with all such rights, powers powers, authorities and discretions as are reasonably incidental theretothereto 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.
(B) When acting in connection with this Agreement, the 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 (1a) assume that any representation made or deemed to be made by an Obligor in connection herewith is true, (b) no Event of Early Repayment and no event which with the giving of notice, lapse of time Default or fulfilment of any other condition would or might constitute an Potential Event of Early Repayment Default has occurred and that none of the Obligors occurred, (c) no Obligor is in breach of or default under its respective obligations under the Finance Documents and (d) any right, power, authority or discretion vested hereunder unless it has received express notice thereof from any party hereto or (in the case Banks or any other person or group of a payment default hereunder) gained actual knowledge thereofpersons has not been exercised;
(2) 33.2.2 assume that each Bank's Lending 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 any some other office of such Bank as its Lending to replace such Facility Office and act upon any such notice until the same is superseded by a further such notice;
(3) 33.2.3 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;
(4) 33.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of any of the Obligors an Obligor upon a certificate signed by or on behalf of such Obligor;
(5) 33.2.5 rely upon any communication or document believed by it to be genuine;
(6) 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 the manner in which 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;
(7) 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 this Agreement any Finance Documents until it shall have 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 value added tax or similar tax VAT 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
(9) refrain from acting 33.2.8 for the avoidance of doubt, exercise any right, power or discretion vested in accordance with any instructions it as agent hereunder without a prior written consent of the Majority Banks (as requested hereunder) if the Agent determines, in its reasonable opinion they are contrary absolute discretion, that to applicable lawacquire 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.
(C) 33.3 Agent's Obligations The Agent shall:
(1) 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 of the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations of all the Banks hereunderFinance Document;
(2) 33.3.2 promptly notify each Bank of the occurrence of any Event of Early Repayment Default or any event which default by an Obligor in the due performance of or compliance with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or any failure of any of the Obligors duly to perform its respective obligations under this Agreement any Finance Document of which the Agent has received express notice from any other party hereto or (in the case of a payment default hereunder) gained actual knowledgehereto;
(3) subject 33.3.3 save as herein providedotherwise provided herein, act as agent hereunder in accordance with any instructions given to it by the Majority Banks 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 a its discretion pursuant to Clause 33.28 shall not be under any obligation whatsoever to exercise, any right, power or discretion vested in it hereunderas agent under any Finance Document. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
(D) The 33.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent shall notnor the Arrangers shall:
(1) 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 Early Repayment Default or Potential Event of Default, (unless a payment default has occurred c) the performance by an Obligor of its obligations hereunder or the Agent has been informed in writing (d) any breach of or default by a Bank describing in reasonable detail an occurrence Obligor of an event which is expressly stated to be an Event of Early Repayment) or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or as to any failure of any of the Obligors duly to perform under its respective obligations hereunder;
(2) 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;
(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) 33.4.3 be bound to disclose to any other person any information relating to any member of the Obligors received by Group if (a) such person, on providing such information, expressly stated to the Agent if or, as the case may be, the Arrangers, that such information was confidential or (b) such disclosure would or might in the its opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable by at the suit of any person; or;
(5) 33.4.4 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 kind 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 ArrangersFinance Document; 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 (▇▇▇▇ 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
Sources: Term Loan Facilities Agreement (Dyckerhoff Aktiengesellschaft)
THE AGENT, THE ARRANGERS AND THE BANKS. (A) Each Bank 25.1 Appointment of the Agent The Arrangers and each of the Banks hereby appoints the Agent to act as its agent in connection herewith and authorizes authorises the Agent to exercise such rights, powers powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers powers, authorities and discretions as are reasonably incidental thereto.
(B) When acting in connection with this Agreement, the 25.2 Agent's Discretions The Agent may:
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 (1a) assume that any representation made or deemed to be made by an Obligor in connection with the Finance Documents is true, (b) no Event of Early Repayment and no event which with the giving of notice, lapse of time Default or fulfilment of any other condition would or might constitute an Potential Event of Early Repayment Default has occurred and that none of the Obligors occurred, (c) no Obligor is in breach of or default under its respective obligations hereunder unless under the Finance Documents and (d) any right, power, authority or discretion vested therein upon the Majority Banks, the Banks or any other person or group of persons has not been exercised;
25.2.2 assume that the Facility Office of each Bank is that notified to it has received express notice thereof from any party hereto or by such Bank in writing prior to the date hereof (or, in the case of a payment default hereunderTransferee, at the end of the Transfer Certificate to which it is a party as Transferee) gained actual knowledge thereof;
(2) assume that each Bank's Lending Office is that identified with its signature below until it has received from such Bank a notice designating any some other office of such Bank as to replace its Lending Facility Office and act upon any such notice until the same is superseded by a further such notice;
(3) 25.2.3 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 necessary, expedient or desirable and rely upon any advice so obtained;
(4) 25.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of any of the Obligors an Obligor upon a certificate signed by or on behalf of such Obligor;
(5) 25.2.5 rely upon any communication or document believed by it to be genuine;
(6) 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 the manner in which 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;
(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 this Agreement the Finance Documents until it 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 value added tax or similar tax VAT thereon which it will or may expend or incur in complying with such instructions;; and
25.2.8 assume (8) if unless it has specific notice to the contrary) that any notice or request made by the Account Party is unable to obtain instructions or communicate with a Bank after making reasonable attempts to do so, either refrain from acting as Agent made 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
(9) refrain from acting in accordance with any instructions of the Majority Banks if in its reasonable opinion they are contrary to applicable lawboth Obligors.
(C) 25.3 Agent's Obligations The Agent shall:
(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 any an Obligor under the Finance Documents and shall promptly deliver to each Bank a copy of the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations each Letter of all the Banks hereunderCredit delivered to Lloyd's pursuant to Clause 3.3 (Completion of Letters of Credit);
(2) 25.3.2 promptly notify each Bank of the occurrence of any Event of Early Repayment Default or any event which default by an Obligor in the due performance of or compliance with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or any failure of any of the Obligors duly to perform its respective obligations under this Agreement the Finance Documents of which the Agent has received express notice from any other party hereto or (in the case of a payment default hereunder) gained actual knowledgehereto;
(3) subject 25.3.3 save as herein providedotherwise provided herein, act as agent under the Finance Documents in accordance with any instructions given to it by an Majority Banks, which instructions shall be binding on the Majority Banks Arrangers and the Banks; and,
25.3.4 if so instructed by the Majority Banks, refrain from exercising a any right, power or discretion vested in it hereunder.
(D) The Agent shall not:
(1) be bound to enquire as to the occurrence or otherwise of any Event of Early Repayment (unless a payment default has occurred hereunder or 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 Early Repayment) or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or as to any failure of any of the Obligors duly to perform its respective obligations hereunder;
(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;
(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 of the Obligors received by the Agent if such disclosure would or might in the opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable by any person; or
(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 kind 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 Finance Documents. The Agent's agency division, unless duties under the Agent had actual knowledge thereof or as a matter of good faith (▇▇▇▇ 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 Finance Documents are solely mechanical 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 administrative in ist capacity as agent hereundernature.
(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
THE AGENT, THE ARRANGERS AND THE BANKS. 34.1 Appointment of the Agent Each of the Arrangers, the Banks and, for the purposes of (Aa) Each Bank 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 herewith with the Finance Documents and authorizes authorises the Agent to exercise such rights, powers powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers and discretions as are reasonably incidental thereto.
(B) When acting under or in connection with this Agreementthe Finance Documents or, as the case may be, the Secured Permitted Facilities together with any other incidental rights, powers, authorities and discretions. In respect of the Subordination Deed and the Second Subordination Deed, the parties hereto agree that the Agent acts as the agent and representative of the Finance Parties and the Permitted Facilities Provider in accordance with the provisions of Dutch law.
34.2 Agent's Discretions The Agent may:
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 (1a) assume that any representation made or deemed to be made by the Parent or an Obligor in connection with the Finance Documents is true, (b) no Event of Early Repayment and no event which with the giving Default or Potential Event of notice, lapse Default has occurred (unless it has actual knowledge of time or fulfilment of any other condition would or might constitute an Event of Early Repayment has occurred and that none of Default arising under Clause 24.1 (Failure to Pay)), (c) neither the Obligors Parent nor any Obligor is in breach of or default under its respective obligations hereunder unless it under the Finance Documents 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 received express notice thereof from any party hereto or (in the case of a payment default hereunder) gained actual knowledge thereofnot been exercised;
(2) 34.2.2 assume that (a) the Facility Office of each Bank's Lending Office Bank is that identified with its signature below notified to it by such Bank in writing and (b) 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 all respects until it has received from such Bank or, as the case may be, the Permitted Facilities Provider notice designating of a change to the Facility Office or any other office of such Bank as its Lending Office information and act upon any such notice until the same is superseded by a further such notice;
(3) 34.2.3 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 necessary, expedient or desirable and rely upon any advice so obtained;
(4) 34.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of any of the Obligors Parent or an Obligor upon a certificate signed by or on behalf of the Parent or such Obligor;
(5) 34.2.5 rely upon any communication or document believed by it to be genuine;
(6) 34.2.6 refrain from exercising any right, power or discretion vested in it hereunder as agent 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 such right, power or discretion it should be exercised;
(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 this Agreement the Finance Documents until it 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 value added tax or similar tax VAT thereon which it will or may expend or incur in complying with such instructions;; and
34.2.8 assume (8) if unless it has specific notice to the contrary) that any notice or request made by the Principal Borrower is unable to obtain instructions or communicate with a Bank after making reasonable attempts to do so, either refrain from acting as Agent made 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 all the case of gross negligence or wilful misconduct); and
(9) refrain from acting in accordance with any instructions of the Majority Banks if in its reasonable opinion they are contrary to applicable lawObligors.
(C) 34.3 Agent's Obligations The Agent shall:
(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 any of the Obligors hereunder Parent or from any Bank where such notice or document concerns an Obligor under the rights, interest and/or obligations of all the Banks hereunderFinance Documents;
(2) 34.3.2 promptly notify each Bank of the occurrence of any Event of Early Repayment Default or any event which default by the Parent or an Obligor in the due performance of or compliance with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or any failure of any of the Obligors duly to perform its respective obligations under this Agreement the Finance Documents of which the Agent has received express notice from any other party hereto or (in the case of a payment default hereunder) gained actual knowledgehereto;
34.3.3 promptly notify each Bank of the occurrence of an Event of Default under Clause 24.1 (3Failure 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) subject or Clause 24.21 (Advances Due on Demand);
34.3.5 save as herein providedotherwise provided herein, act as agent under the Finance Documents in accordance with any instructions given to it by an Instructing Group, which instructions shall be binding on the Majority Banks and, Arrangers and the Banks;
34.3.6 if so instructed by the Majority Banksan Instructing Group, refrain from exercising a any right, power or discretion vested in it hereunderas 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.
(D) The 34.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent shall notnor an Arranger shall:
(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 with the Finance Documents is true, (b) the occurrence or otherwise of any Event of Early Repayment (unless a payment default has occurred hereunder Default or 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 Potential Event of Early RepaymentDefault, (c) the performance by either the Parent or an Obligor of its obligations under the Finance Documents or (d) any event which with breach of or default by either the giving Parent or an Obligor of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or as to any failure of any of under its obligations under the Obligors duly to perform its respective obligations hereunderFinance Documents;
(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;
(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) 34.4.3 be bound to disclose to any other person any information relating to any member of the Obligors received by NTL Inc. Group, any member of the Agent NTL Inc. Holding Group or any member of the Group if (a) such information is confidential or (b) such disclosure would or might in the its reasonable opinion of the Agent constitute a breach of any law or regulation or a breach of fiduciary duty;
34.4.4 be otherwise actionable by any person; or
(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 kind 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 (▇▇▇▇ 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
Sources: Credit Agreement (NTL Europe Inc)
THE AGENT, THE ARRANGERS AND THE BANKS. (A) Each Bank 26.1 Appointment of the Agent The Arrangers and each of the Banks hereby appoints the Agent to act as its agent in connection herewith and authorizes authorises the Agent to exercise such rights, powers powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers powers, authorities and discretions as are reasonably incidental thereto.
(B) When acting in connection with this Agreement, the 26.2 Agent's Discretions The Agent may:
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 (1a) assume that any representation made or deemed to be made by an Obligor in connection with the Finance Documents is true, (b) no Event of Early Repayment and no event which with the giving of notice, lapse of time Default or fulfilment of any other condition would or might constitute an Potential Event of Early Repayment Default has occurred and that none of the Obligors occurred, (c) no Obligor is in breach of or default under its respective obligations hereunder unless under the Finance Documents and (d) any right, power, authority or discretion vested therein upon the Majority Banks, the Banks or any other person or group of persons has not been exercised;
26.2.2 assume that the Facility Office of each Bank is that notified to it has received express notice thereof from any party hereto or by such Bank in writing prior to the date hereof (or, in the case of a payment default hereunderTransferee, at the end of the Transfer Certificate to which it is a party as Transferee) gained actual knowledge thereof;
(2) assume that each Bank's Lending Office is that identified with its signature below until it has received from such Bank a notice designating any some other office of such Bank as to replace its Lending Facility Office and act upon any such notice until the same is superseded by a further such notice;
(3) 26.2.3 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 necessary, expedient or desirable and rely upon any advice so obtained;
(4) 26.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of any of the Obligors an Obligor upon a certificate signed by or on behalf of such Obligor;
(5) 26.2.5 rely upon any communication or document believed by it to be genuine;
(6) 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 the manner in which 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;
(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 this Agreement the Finance Documents until it 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 value added tax or similar tax VAT thereon which it will or may expend or incur in complying with such instructions;; and
26.2.8 assume (8) if unless it has specific notice to the contrary) that any notice or request made by the Account Party is unable to obtain instructions or communicate with a Bank after making reasonable attempts to do so, either refrain from acting as Agent made 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
(9) refrain from acting in accordance with any instructions of the Majority Banks if in its reasonable opinion they are contrary to applicable lawboth Obligors.
(C) 26.3 Agent's Obligations The Agent shall:
(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 any an Obligor under the Finance Documents and shall promptly deliver to each Bank a copy of the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations each Letter of all the Banks hereunderCredit delivered to Lloyd's pursuant to Clause 3.3 (Completion of Letters of Credit);
(2) 26.3.2 promptly notify each Bank of the occurrence of any Event of Early Repayment Default or any event which default by an Obligor in the due performance of or compliance with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or any failure of any of the Obligors duly to perform its respective obligations under this Agreement the Finance Documents of which the Agent has received express notice from any other party hereto or (in the case of a payment default hereunder) gained actual knowledgehereto;
(3) subject 26.3.3 save as herein providedotherwise provided herein, act as agent under the Finance Documents in accordance with any instructions given to it by an Majority Banks, which instructions shall be binding on the Majority Banks Arrangers and the Banks; and,
26.3.4 if so instructed by the Majority Banks, refrain from exercising a any right, power or discretion vested in it hereunderas agent under the Finance Documents. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
(D) The 26.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent shall notnor the Arrangers shall:
(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 with the Finance Documents is true, (b) the occurrence or otherwise of any Event Default, (c) the performance by an Obligor of Early Repayment its obligations under the Finance Documents or (unless a payment d) any breach of or default has occurred hereunder by an Obligor of or under its obligations under 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 Early Repayment) or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or as to any failure of any of the Obligors duly to perform its respective obligations hereunderFinance Documents;
(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;
(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) 26.4.3 be bound to disclose to any other person any information relating to any member of the Obligors received by Group if (a) such person, on providing such information, expressly stated to the Agent if or, as the case may be, the Arrangers, that such information was confidential or (b) such disclosure would or might in the its opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable by at the suit of any person; or;
(5) 26.4.4 be under any fiduciary duty towards any Bank or under any obligations other than those for which express provision is made herein; or
26.4.5 be or be deemed to be a fiduciary for any other party hereto.
(E) 26.5 Indemnification Each Bank shall shall, in its Proportion, from time to time on demand by the Agent, 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, losses, expenses (including legal fees) and liabilities together with any VAT thereon which the Agent may incur in complying with any instructions received incur, otherwise than 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 reason of the Agent or to the extent that these costs, claims, expenses and liabilities are sustained or incurred as a result of the its own gross negligence or wilful misconduct of the Agent or any of misconduct, in acting in 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 kind 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 (▇▇▇▇ 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.
hereunder (J) The Agent may (and if so instructed other than any which have been reimbursed by the Majority Banks, shall) for any reason at any time retire upon not less than forty-five days' written notice Account Party pursuant 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 AgentClause 21.1 Company'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 GESETZBUCHIndemnity).
Appears in 1 contract
Sources: Exhibit (Ace LTD)
THE AGENT, THE ARRANGERS AND THE BANKS. (A) 29.1 Each Arranger and each Bank hereby appoints the Agent to act as its agent in connection herewith and authorizes authorises the Agent to exercise such rights, powers powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers powers, authorities and discretions as are reasonably incidental thereto.
(B) When acting in connection with this Agreement, the 29.2 The Agent may:
29.2.1 assume that:
(1a) assume that any representation made by an Obligor in connection herewith is true;
(b) no Event of Early Repayment and no event which with the giving of notice, lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment Default has occurred and that none of occurred;
(c) the Obligors is are not in breach of or default under its respective their obligations hereunder 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 has, in its capacity as agent for the Banks, received express notice thereof to the contrary from any other party hereto or (in the case of a payment default hereunder) gained actual knowledge thereofhereto;
(2) 29.2.2 assume that the Facility Office of each Bank's Lending Office Bank is that identified with its signature below last notified to it until it has received from such Bank a notice designating any some other office of such Bank as to replace its Lending Facility Office and act upon any such notice until the same is superseded by a further such notice;
(3) 29.2.3 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 necessary, expedient or desirable and rely upon any advice so obtained;
(4) 29.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of any of the Obligors an Obligor upon a certificate signed by or on behalf of such Obligor;
(5) 29.2.5 rely upon any communication or document believed by it to be genuine;
(6) 29.2.6 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 such right, power or discretion it should be exercised;; and
(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 this Agreement until it 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 value added tax or similar tax VAT 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
(9) refrain from acting in accordance with any instructions of the Majority Banks if in its reasonable opinion they are contrary to applicable law.
(C) 29.3 The Agent shall:
(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 any of the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations of all the Banks either Obligor hereunder;
(2) 29.3.2 promptly notify each Bank of the occurrence of any Event of Early Repayment Default or any event which default by the Borrower in the due performance of or compliance with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or any failure of any of the Obligors duly to perform its respective obligations under this Agreement of which the Agent has received express notice from any other party hereto or (in the case of a payment default hereunder) gained actual knowledgehereto;
(3) subject 29.3.3 save as herein providedotherwise provided herein, act as agent hereunder in accordance with any instructions given to it by an Instructing Group, which instructions shall be binding on all of the Majority Banks Arrangers and the Banks; and
29.3.4 save as otherwise provided herein, if so instructed by the Majority Banksan Instructing Group, refrain from exercising a any right, power or discretion vested in it as agent hereunder.
(D) The 29.4 Notwithstanding anything to the contrary expressed or implied herein, neither the Agent shall notnor any of the Arrangers shall:
(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 Early Repayment Default;
(unless a payment default has occurred hereunder or c) the Agent has been informed in writing performance by a Bank describing in reasonable detail an occurrence of an event which is expressly stated to be an Event of Early Repayment) or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or as to any failure of any of the Obligors duly to perform of their obligations hereunder; or
(d) any breach of or default by an Obligor of or under its respective obligations hereunder;
(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;
(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) 29.4.3 be bound to disclose to any other person any information relating to any member of the Obligors received by the Agent Group if such disclosure would or might in the its opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable by at the suit of any person; or
(5) 29.4.4 be under any fiduciary duty towards any Bank or under any obligations other than those for which express provision is made herein.
(E) 29.5 Each Bank shall shall, in its Proportion, from time to time on demand by the Agent, 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 givenAgent, against any and all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which the Agent may incur in complying with any instructions received incur, otherwise than 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 reason of the Agent or to the extent that these costs, claims, expenses and liabilities are sustained or incurred as a result of the its own gross negligence or wilful misconduct of misconduct, in acting in its capacity as agent hereunder.
29.6 Neither the Agent or and the Arrangers nor any of its personnel or agents.
(F) Each Bank agrees that neither the Agent nor the Arrangers shall be responsible them accepts any responsibility for the accuracy and and/or completeness of any representations made (whether orally or otherwise) herein or information supplied by the Borrower in connection herewith, herewith or for the legality, validity, effectiveness, adequacy or enforceability of this
(G) The Arrangers 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) ▇▇▇ ▇▇▇▇.
29.8 The Agent and each of the Arrangers may accept deposits from, lend money to and generally engage in any kind 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 (Hi) 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 creditworthiness, condition, affairs, status and affairs of each nature of the ObligorsObligors and, accordingly, each other member of the Group and the Group as a whole and accordingly each Bank confirms warrants to the Agent and the Arranges Arrangers that it has not relied, relied on and will not hereafter rely, rely on the Agent or and the ArrangersArrangers nor any of them:
(1) 29.12.1 to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by any of the Obligors 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 the Arrangersthem); or
(2) 29.12.2 to assess or keep under review on its behalf the financial condition, creditworthiness creditworthiness, condition, affairs, status or affairs of any nature of the Obligors, any other member of the Group or the Group as a whole.
(I) 29.13 In acting as agent Agent for the Banks under Banks, the Facility Documents the Agent shall be regarded as acting through its Agent's 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 24Clause 29, in the event that the Agent should act for either Obligor in any capacity in relation to any other matter, any information received given by some other division or department of either Obligor to the Agent in such other capacity 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 (▇▇▇▇ 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 29.14 Nothing in 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, will oblige the Agent may or the Arranger to satisfy any know your customer requirement in consultation with relation to the Borrower and the Majority Banks appoint a substitute Reference Bankidentity of any person on behalf of any Finance Party.
(L) The 29.15 Each Finance Party confirms to the Agent shall be released from the restrictions set 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 paragraph 181 of the German Civil Code (BURGERLICHES GESETZBUCH)relation to those requirements made by any other person.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility Agreement (Mbna Corp)
THE AGENT, THE ARRANGERS AND THE BANKS. (A) 28.1 Each Arranger and each Bank hereby appoints the Agent to act as its agent in connection herewith and authorizes authorises the Agent to exercise such rights, powers powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers powers, authorities and discretions as are reasonably incidental thereto.
(B) When acting in connection with this Agreement, the 28.2 The Agent may:
(1i) assume that that:
(a) any representation made by the Borrower in connection herewith is true;
(b) no Event of Early Repayment and no event which with Default has occurred;
(c) the giving of notice, lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment has occurred and that none of the Obligors Borrower is not in breach of or default under its respective obligations hereunder 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 has, in its capacity as agent for the Banks, received express notice thereof to the contrary from any other party hereto or (in the case of a payment default hereunder) gained actual knowledge thereofhereto;
(2ii) assume that the Facility Office of each Bank's Lending Office 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 any some other office of such Bank as to replace its Lending Facility Office and act upon any such notice until the same is superseded by a further such notice;
(3iii) 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 necessary, expedient or desirable and rely upon any advice so obtained;
(4iv) rely as to any matters of fact which might reasonably be expected to be within the knowledge of any of the Obligors Borrower upon a certificate signed by or on behalf of such Obligorthe Borrower;
(5v) rely upon any communication or document believed by it to be genuine;
(6vi) 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 the manner in which such right, power or discretion should be exercised;an
(7vii) 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 this Agreement until it 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 value added tax or similar tax VAT 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
(9) refrain from acting in accordance with any instructions of the Majority Banks if in its reasonable opinion they are contrary to applicable law.
(C) 28.3 The Agent shall:
(1i) promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from any of the Obligors hereunder or from any Bank where such notice or document concerns the rights, interest and/or obligations of all the Banks Borrower hereunder;
(2ii) promptly notify each Bank of the occurrence of any Event of Early Repayment Default or any event which default by the Borrower in the due performance of or compliance with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or any failure of any of the Obligors duly to perform its respective obligations under this Agreement of which the Agent has received express notice from any other party hereto or (in the case of a payment default hereunder) gained actual knowledgehereto;
(3iii) subject save as herein providedotherwise provided herein, act as agent hereunder in accordance with any instructions given to it by an Instructing Group, which instructions shall be binding on all of the Majority Banks Arrangers and the Banks; and
(iv) save as otherwise provided herein, if so instructed by the Majority Banksan Instructing Group, refrain from exercising a any right, power or discretion vested in it as agent hereunder.
(D) The 28.4 Notwithstanding anything to the contrary expressed or implied herein, neither the Agent shall notnor any of the Arrangers shall:
(1i) be bound to enquire as to to:
(a) whether or not any representation made by the Borrower in connection herewith is true;
(b) the occurrence or otherwise of any Event Default;
(c) the performance by the Borrower of Early Repayment its obligations hereunder; or
(unless a payment d) any breach of or default has occurred hereunder by the Borrower of or 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 Early Repayment) or any event which with the giving of notice or lapse of time or fulfilment of any other condition would or might constitute an Event of Early Repayment or as to any failure of any of the Obligors duly to perform under its respective obligations hereunder;
(2ii) be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
(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;
(4iii) be bound to disclose to any other person any information relating to any of the Obligors received by the Agent if such disclosure would or might in the opinion of the Agent constitute a breach of any law or regulation or be otherwise actionable by any person; orany
(5iv) be under any fiduciary duty towards any Bank or under any obligations other than those for which express provision is made herein.
(E) 28.5 Each Bank shall shall, in its Proportion, from time to time on demand by the Agent, 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 givenAgent, against any and all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which the Agent may incur in complying with any instructions received incur, otherwise than 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 reason of the Agent or to the extent that these costs, claims, expenses and liabilities are sustained or incurred as a result of the its own gross negligence or wilful misconduct of misconduct, in acting in its capacity as agent hereunder.
28.6 Neither the Agent or and the Arrangers nor any of its personnel or agents.
(F) Each Bank agrees that neither the Agent nor the Arrangers shall be responsible them accepts any responsibility for the accuracy and and/or completeness of any representations made (whether orally or otherwise) herein or information supplied by the Borrower in connection herewith, herewith or for the legality, validity, effectiveness, adequacy or enforceability of this
(G) The Arrangers 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 kind of banking or other business with the BorrowerBorrower 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 (Hwith 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 creditworthiness, condition, affairs, status and affairs of each nature of the ObligorsBorrower and, accordingly, each other member of the Group and the Group as a whole and accordingly each Bank confirms warrants to the Agent and the Arranges Arrangers that it has not relied, relied on and will not hereafter rely, rely on the Agent or and the ArrangersArrangers nor any of them:
(1i) to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by any of the Obligors 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 the Arrangersthem); or
(2ii) to assess or keep under review on its behalf the financial condition, creditworthiness creditworthiness, condition, affairs, status or affairs of any nature of the Obligors, any other member of the Group or the Group as a wholeBorrower.
(I) 28.13 In acting as agent Agent for the Banks under Banks, the Facility Documents the Agent shall be regarded as acting through its Agent's 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 24Clause 28, in the event that the Agent should act for the Borrower in any capacity in relation to any other matter, any information received given by some other division or department of the Borrower to the Agent in such other capacity 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 (▇▇▇▇ 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).
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Sources: Multicurrency Revolving Credit Facility Agreement (Mbna Corp)