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transnational law transnational law (lex mercatoria or international business law) and "Performance by agent" 2016-03-01 13:58:16

No. II.6 - Performance by agent

Unless a contrary intention appears from the language of the parties, or the nature of the transaction, a debtor may perform his part by an agent. Such a contrary intention is presumed, in the case of any duty involving personal confidence between the parties, or the exercise of the debtor's personal skill.

A debtor may involve a third party in the performance of his obligations vis-à-vis the creditor unless that performance is dominated not only by the performance interest of the creditor but by personal aspects such as the special skills of the debtor or the confidence of the creditor in the abilities of the debtor or if the parties have, by express agreement or by implication, excluded the debtor's right to avail himself of the services of a third party in the performance of his obligations.

Please cite as: "Commentary to Trans-Lex Principle , "
Arbitral Awards
Court Decisions
National Legislation
Principles / Restatements
Contract Clauses
1. Contractual Clause Ruling Performance by Agent
Sales & Purchase Contract
Choosing Routes or Agents

Unless specified by the Customer in writing, the Company has complete freedom in choosing the means, route and procedure to be followed in the handling, transportation or delivery of the goods - (International Contracting: Law and Practice - Larry A. DiMatteo - 7.12 - S. 251).


Apple may contract with third parties to provide Fulfillment Activities on behalf of Apple, provided such third parties are subject to terms no less restrictive than the terms Apple is subject to under this Agreement, and who are able to perform on behalf of Apple in a professional and workmanlike manner.

Services Contract

Neither the rights nor the obligations of any party under this Agreement may be assigned, transferred, subcontracted or otherwise disposed of, in whole or in part, without the prior written consent of the other parties.

The Contractor may at any time assign, sub-let, or transfer any or all of its rights or obligations under this Agreement subject to it first obtaining the consent of the Company, which shall not be unreasonably withheld or delayed.


The Contractor shall not, without the prior and express approval of the Company, assign the rights and obligations arising out of his/her contract in whole or in part nor sub-contract any part of the contract nor cause it to be carried out or performed by third parties. Even where the Company authorises the Contractor to sub-contract all or part of the Work to third parties the Contractor shall remain bound by its obligations to the Company. The Contractor shall also be required to include in all contracts with such third parties provisions that ensure that the Company shall have the same rights and undertakings in relation to the third parties as the Contractor itself.

Delegation of Duties

The Collateral Agent may execute any of the rights, remedies, powers, privileges, duties or obligations under this Agreement and the other Loan Documents to which it is a party either directly or by or through nominees or agents, and shall not be liable for any misconduct or negligence of any such nominee or agent appointed with due care by it hereunder.

Power of Attorney

(...) X (...) does hereby make, constitute and appoint Y, as Servicer, its true and lawful Attorney(s)-in-Fact for it and in its name, stead and behalf to execute any and all documents and instruments (...) to appoint individual representatives of Y as attorneys-in-fact to fulfill the purposes of this Power of Attorney (...)

Bankruptcy Agreement
Control of Litigation

Except as set forth in this Section X, the Litigation Trustee shall have the full power and discretion to select and to hire professionals, and to initiate, to prosecute, to supervise, to direct, to compromise and to settle all Litigation Claims. Notwithstanding the foregoing, Newco may, in its sole and absolute discretion, direct the Trustee to dismiss with prejudice, to compromise or to settle any Cause of Action against any person or entity which is a provider of goods or services to Newco or any of its direct or indirect subsidiaries from and after the Consummation Date which Newco reasonably believes could have an adverse effect on its business.

Rights and Powers of Disbursing Agent

The Disbursing Agent shall be empowered to (a) effect all actions and execute all agreements, instruments and other documents necessary to perform its duties this Plan of Reorganization, (b) make all distributions
contemplated hereby, (c) employ professionals to represent it with respect to its responsibilities, and (d) exercise such other powers as may be vested in the Disbursing Agent by order of the Bankruptcy Court, pursuant to this Plan of Reorganization, or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions hereof.

Trust Agreement
Purposes of Trust

So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trust (or the Trustees acting on behalf of the Trust) shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) incur any indebtedness for borrowed money or issue any other debt, (iv) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (v) take or consent to any action that would reasonably be expected to cause (or in the case of the Property Trustee, to the actual knowledge of a Responsible Officer would cause) the Trust to become taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes, (vi) take or consent to any action that would cause (or in the case of the Property Trustee, to the actual knowledge of a Responsible Officer would cause) the Notes to be treated as other than indebtedness of the Depositor for United States federal income tax purposes or (vii) take or consent to any action that would cause the Trust to be deemed to be an "investment company" required to be registered under the Investment Company Act. 

2. Indemnification of Agent / Costs of Performance
Bankruptcy Agreement
Professional Fees and Expenses

Newco shall execute and deliver to the Litigation Trustee the Litigation Trust Professional Fee Guaranty pursuant to which it shall guaranty for a period of five (5) years from and after the Consummation Date, the payment of all professional fees and expenses of the Litigation Trustee in an amount not to exceed two million one hundred thousand dollars ($2,100,000) in the aggregate, it being understood that one hundred thousand dollars of such amount shall be for the exclusive purpose of paying fees and expenses of the Creditors Committee which may become due and payable pursuant to Section 6.16 hereof. On the Consummation Date, the Litigation Trustee shall execute and deliver to Newco the Professional Fee Reimbursement Note pursuant to which the Litigation Trust shall be obligated to reimburse Newco for any all sums advanced pursuant to the Litigation Trust Professional Fee Guaranty together with simple interest at the rate of ten percent (10%) per annum which obligation shall be secured by a valid, binding, enforceable, perfected, first priority security interest in and lien against all assets of the Litigation Trust.

Expenses Incurred on or after the Consummation Date

Except as otherwise ordered by the Bankruptcy Court, the amount of any reasonable fees and expenses incurred by the Disbursing Agent on or after the Consummation Date (including, without limitation, taxes) and any reasonable compensation and expense reimbursement claims (including, without limitation, reasonable fees and expenses of counsel) made by the Disbursing Agent, shall be paid in Cash by the Reorganized Debtors.

Pledge Agreement
Taxes and Expenses

(...) The Grantors shall reimburse the Agent for any and all out-of-pocket expenses and internal charges (including reasonable attorneys', auditors' and accountants' fees and reasonable time charges of attorneys, paralegals, auditors and accountants who may be employees of the Agent) paid or incurred by the Agent in connection with the preparation, execution, delivery, administration, collection and enforcement of this Security Agreement and in the audit, analysis, administration, collection, preservation or sale of the Collateral (including the expenses and charges associated with any periodic or special audit of the Collateral). Any and all costs and expenses incurred by the Grantors in the performance of actions required pursuant to the terms hereof shall be borne solely by the Grantors.


Each Grantor hereby agrees to indemnify the Agent, and its successors, assigns, agents and employees, from and against any and all liabilities, damages, penalties, suits, costs, and expenses of any kind and nature (including, without limitation, all expenses of litigation or preparation therefor whether or not the Agent is a party thereto) imposed on, incurred by or asserted against the Agent, or its successors, assigns, agents and employees, in any way relating to or arising out of this Security Agreement, or the manufacture, purchase, acceptance, rejection, ownership, delivery, lease, possession, use, operation, condition, sale, return or other disposition of any Collateral (including, without limitation, latent and other defects, whether or not discoverable by the Agent or any Grantor, and any claim for Patent, Trademark or Copyright infringement).

Trust Agreement
Initial Contribution of Trust Property; Fees, Costs and Expenses

The Property Trustee acknowledges receipt from the Depositor in connection with the Original Trust Agreement of the sum of ten dollars ($10), which constituted the initial Trust Property. The Depositor shall pay all fees, costs and expenses of the Trust (except with respect to the Trust Securities) as they arise or shall, upon request of any Trustee, promptly reimburse such Trustee for any such fees, costs and expenses paid by such Trustee. The Depositor shall make no claim upon the Trust Property for the payment of such fees, costs or expenses.


The Parties, jointly and severally, shall indemnify, defend and hold harmless the Trustee from and against any and all loss, liability, cost, damage and expense, including, without limitation, attorneys' fees and expenses or other professional fees and expenses which the Trustee may suffer or incur by reason of any action, claim or proceeding brought against the Trustee, arising out of or relating in any way to this Trust Agreement or any transaction to which this Trust Agreement relates, unless such loss, liability, cost, damage or expense shall have been finally adjudicated to have been directly caused by the willful misconduct or gross negligence of the Trustee. The provisions of this Section X shall survive the resignation or removal of the Trustee and the termination of this Trust Agreement. 


The Trustee shall be entitled to compensation for its services as stated in the fee schedule attached hereto as Exhibit B, which compensation shall be borne equally by the Majority Sellers and Buyer Parent. The fee agreed upon for the services rendered hereunder is intended as full compensation for the Trustee's services as contemplated by this Trust Agreement; provided, however, that in the event that the conditions for the disbursement of funds under this Trust Agreement are not fulfilled, or the Trustee renders any service not contemplated by this Trust Agreement, or there is any assignment of interest in the subject matter of this Trust Agreement, or any material modification hereof, or if any material controversy arises hereunder, or the Trustee is made a party to any litigation pertaining to this Trust Agreement or the subject matter hereof, then the Trustee shall be compensated for such extraordinary services and reimbursed for all costs and expenses, including reasonable attorneys' fees and expenses, occasioned by any such delay, controversy, litigation or event. If any amount due to the Trustee hereunder is not paid within thirty (30) days of the date due, the Trustee in its sole discretion may charge interest on such amount up to the highest rate permitted by applicable law. The Trustee shall have, and is hereby granted, a prior lien upon the Trust Shares with respect to its unpaid fees, non-reimbursed expenses and unsatisfied indemnification rights, superior to the interests of any other persons or entities and is hereby granted the right to set off and deduct any unpaid fees, non-reimbursed expenses and unsatisfied indemnification rights from the Trust Shares. 

A project of CENTRAL, University of Cologne.