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transnational law transnational law (lex mercatoria or international business law) and "Costs of performance" 2016-03-01 13:58:16 https://www.trans-lex.org/img/logo_ball.png
Principle

No. V.1.5 - Costs of performance

Each party shall bear the costs of performance of its obligations, unless the parties have agreed otherwise.

Commentary
The Principle provides a clear-cut rule for the carrying of the costs of performance. These costs must be carried by the party who performs, unless the parties have agreed otherwise, expressly or by implication. These costs may involve the transport of the goods sold, fees to be paid for the export of goods, bank charges for money transfers etc.


Please cite as: "Commentary to Trans-Lex Principle , "
References
Principles / Restatements
Contract Clauses
1. Contractual Repartition of Costs of Performance
Employment Contract
Expenses
The Company will reimburse Employee, in accordance with the Company’s established policies, for reasonable business related expenses incurred by Employee in furtherance of or in connection with the performance of Employee’s duties hereunder, including reasonable expenses incurred in connection with Employee’s home office (including but not limited to a computer, telephone, fax and internet charges). Employee shall furnish the Company with evidence of such expenses within a reasonable period of time from the date such expenses were incurred.
2003
Income and Expenses
Fees charged by the Trustee and other expenses of operating the Trust shall be paid by the Employers or, in the absence of such payments (which are not obligatory), out of the general Trust assets and charged to the separate Individual Accounts of all Participants and Former Participants under the Plan in the ratio that the fair market value of each such Individual Account bears to the total fair market value of all separate Individual Accounts.
2007
Maintenance and Repair
Within the lease term hereunder, for any natural wear that occurs to the House and Party A's equipment, Party B shall promptly notify Party A or the property management company to send their staff for maintenance and repair and Party A shall do so within a reasonable period of time and bear all the maintenance and repair costs. For any wear resulting from secondary renovation and decoration by Party B, Party B shall be responsible for the maintenance and repair at its own cost with Party A cooperating with Party B in repairing secondary renovation and decoration. If the glass wall, architectural structure, central air conditioning system or any other part of the House is damaged due to any reason on the part of Party B, Party B shall be responsible for bearing all the associated maintenance and repair costs.
2010
Sales & Purchase Contract
Security Interest
Seller shall pay all reasonable fees and expenses associated with perfecting Buyer's security interest in the Collateral, including, without limitation, the cost of filing financing statements under the Uniform Commercial Code and recording assignments of Mortgage, as and when required by Buyer in its sole discretion.
1998
Other Costs and Expenses
Seller will pay to the Agents and the Purchasers on demand all costs and out-of-pocket expenses in connection with the preparation, execution, delivery and administration of this Agreement, the transactions contemplated hereby and the other documents to be delivered hereunder, including without limitation, the cost of Administrative Agent's auditors auditing the books, records and procedures of Seller, reasonable fees and out-of-pocket expenses of legal counsel for the Purchasers and the Agents (which such counsel may be employees of a Purchaser or an Agent) with respect thereto and with respect to advising the Purchasers and the Agents as to their respective rights and remedies under this Agreement. Seller will pay to X's Agent and Y on demand any and all costs and expenses of the Agents and the Purchasers, if any, including reasonable counsel fees and expenses in connection with the enforcement of this Agreement and the other documents delivered hereunder and in connection with any restructuring or workout of this Agreement or such documents, or the administration of this Agreement following an Amortization Event (...)
2003
Inspection
Buyer shall protect, indemnify, defend and hold the Property, Seller and Seller's officers, directors, shareholders, participants, affiliates, employees, representatives, invitees, agents and contractors free and harmless from and against any and all claims, damages, liens, stop notices, liabilities, losses, costs and expenses, including reasonable attorneys' fees and court costs, resulting from Buyer's inspection and testing of the Property, including, without limitation, repairing any and all damages to any portion of the Property, to the extent arising out of or related (directly or indirectly) to Buyer's conducting such inspections, surveys, tests, and studies. Buyer shall keep the Property free and clear of any mechanics' liens or materialmen's liens related to Buyer's right of inspection and related activities. The Buyer's indemnification obligations set forth herein shall survive the Close of Escrow and shall not be merged with the Deed, and shall survive the termination of this Agreement.
2003
Commissions
(...) Buyer shall indemnify and hold Seller harmless from and against any and all liabilities, claims, demands, damages, costs and expenses, including, without limitation, reasonable attorneys' fees and court costs, in connection with claims for any such commissions, finders' fees or brokerage fees arising out of Buyer's conduct or the inaccuracy of the foregoing representation and/or warranty of Buyer. Seller shall indemnify and hold Buyer harmless from and against any and all liabilities, claims, demands, costs and expenses, including, without limitation, reasonable attorneys' fees and costs in connection with claims for any such commissions, finders' fees or brokerage fees arising out of Seller's conduct or the inaccuracy of the foregoing representation and/or warranty of Seller.
2003
Attorney's Fees
In the event of any litigation regarding the rights and obligations under this Agreement or in the Escrow Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and court costs. Each party shall bear its own attorneys' fees in connection with the preparation of this Agreement and the consummation of the transactions contemplated hereunder.
2004
Expenses
Each party shall pay all costs and expenses incurred or to be incurred by it in negotiating and preparing this Agreement and in closing and carrying our transactions contemplated by this Agreement.
2006
Costs
Each Party shall bear its own costs for its development efforts hereunder.
2006
Costs of Performance
Except as expressly provided for herein, each Party shall be responsible for, and pay all costs associated with, the performance of its obligations under this Agreement.
2006
Payments
Notwithstanding any limitation on recourse contained in this Agreement, Seller will immediately pay to the X Agent, for the benefit of the relevant Purchaser(s) in the X Group, and Fifth Third, on a full recourse basis, (i) such fees as set forth in the applicable Fee Letter (which fees, in the case of the Falcon Group, will be sufficient to pay all fees owing to the Financial Institutions in the X Group), (ii) all CP Costs applicable to their respective Group’s Purchaser Interests, (iii) all amounts payable as Yield to their respective Groups, (iv) their respective Group’s Percentage of all amounts payable as Deemed Collections (which will be immediately due and payable by Seller and applied to reduce outstanding Aggregate Capital hereunder in accordance with Sections X hereof), (v) all amounts payable to reduce the Seller Interest, if required, pursuant to Section X hereof, (vi) all amounts payable pursuant to Article X, if any, (vii) all Servicer costs and expenses, including the Servicing Fee, in connection with servicing, administering and collecting the Receivables, (viii) all Broken Funding Costs applicable to their respective Group’s Purchaser Interest and (ix) all Default Fees applicable to their respective Group’s Purchaser Interest (collectively, the “Obligations”) (...)
2009
Other Costs and Expenses
Seller will pay to the Agents and the Purchasers on demand all costs and out-of-pocket expenses in connection with the preparation, execution, delivery and administration of this Agreement, the transactions contemplated hereby and the other documents to be delivered hereunder, including without limitation, the cost of Administrative Agent’s auditors auditing the books, records and procedures of Seller, reasonable fees and out-of-pocket expenses of legal counsel for the Purchasers and the Agents (which such counsel may be employees of a Purchaser or an Agent) with respect thereto and with respect to advising the Purchasers and the Agents as to their respective rights and remedies under this Agreement. Seller will pay to the Falcon Agent and Fifth Third on demand any and all costs and expenses of the Agents and the Purchasers, if any, including reasonable counsel fees and expenses in connection with the enforcement of this Agreement and the other documents delivered hereunder and in connection with any restructuring or workout of this Agreement or such documents, or the administration of this Agreement following an Amortization Event (...)
2009
Change of Control Provision
Subject to Newco having entered into a confidentiality agreement in form and substance reasonably satisfactory to the Company, in connection with its consideration of whether to submit its own Acquisition Proposal, during the Acquisition Proposal Notice Period, Newco shall be entitled to examine, at its expense, and the Company shall make available to Newco, the Company's books of account and records and to discuss the Company's affairs, finances and accounts with its officers, and Company shall make such officers available for such purpose, all at such times as may be reasonably requested by Newco during the Company's normal business hours, on terms substantially similar to those granted to a third party, if any, that has submitted and Acquisition Proposal that has been the subject of an Acquisition Proposal Notice.
2009
Expenses
Each party hereto shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of this Agreement.
2009
Increased or Reduced Costs
X agrees to reimburse any Y Noteholder for any increase in the cost of, or any reduction in the amount of any sum receivable by such Y Noteholder that arise in connection with any Changes in Law, except for such Changes in Law with respect to increased capital costs and taxes which are governed by Sections X and Y, respectively. Each such demand shall be provided to X in writing and shall state, in reasonable detail, the reasons therefor and the additional amount required fully to compensate such Y Noteholder for such increased cost or reduced amount or return. Such additional amounts shall be payable by X directly to the applicable Y Noteholder within five (5) Business Days of X's receipt of such notice, and such notice shall, in the absence of manifest error, be conclusive and binding on X.
2010
Payment of Costs and Expenses
X agrees to pay on demand all reasonable expenses of each Y Noteholder (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel to the Y Noteholders) in connection with (i) the negotiation, preparation, execution, delivery and administration of this Agreement and of each other Related Document, including schedules and exhibits and any amendments, waivers, consents, supplements or other modifications to this Agreement or any other Related Document as may from time to time hereafter be proposed, whether or not the transactions contemplated hereby or thereby are consummated, and (ii) the consummation of the transactions contemplated by this Agreement and the other Related Documents.
2010
Expenses
All costs and expenses incurred in connection with this Agreement and each other agreement, document and instrument contemplated by this Agreement and the transactions contemplated hereby and thereby shall be paid by the party incurring such costs and expenses.
2010
Flyaway
All expenses of, or connected with, flying the Aircraft from the Delivery Location after Delivery will be borne by the Buyer. The Buyer will make direct arrangements with the supplying companies for the fuel and oil required for all post-Delivery flights.
2011
Legal Fees and Expenses
Except as set forth in this Section X, each party to this Agreement shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of this Agreement. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, including an arbitration, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
2011
Expenses
Except as expressly provided herein to the contrary, all Expenses incurred in connection with the Transactions (whether or not the Transactions are consummated) shall be paid by the Party incurring such Expense; provided, that the foregoing shall not impair the remedies available to a Party arising from a breach by another Party.
2012
Expenses
Except as expressly set forth in this Agreement, all fees and expenses incurred by each party hereto in connection with the matters contemplated by this Agreement shall be borne by the party incurring such fee or expense, including without limitation the fees and expenses of any investment banks, attorneys, accountants or other experts or advisors retained by such party.
2013
Expenses
The Company will pay all out-of-pocket fees and expenses incurred by or on behalf of Purchaser or its Affiliates in connection with the transactions contemplated by this Agreement (including all legal and accounting fees and disbursements in connection herewith, documentation and implementation of such transactions and due diligence in connection therewith, in each case whether before or after the date hereof) and with any amendments, waivers or consents under or in respect of this Agreement, the Notes, Warrants or Bridge Warrants (whether or not such amendment, waiver or consent becomes effective), including (...) fees and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under this Agreement, the Notes, Warrants or Bridge Warrants or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement, the Notes, Warrants or Bridge Warrants (...)
2013
Fees and Expenses
Except as set forth in the Transaction Documents, whether or not the transactions contemplated by this Agreement are consummated, each party will pay its own direct and indirect expenses incurred by it in connection with the preparation and negotiation of this Agreement and the consummation of the transactions contemplated by this Agreement, including all fees and expenses of its advisors and representatives.
2014
Services Contract
Consulting Agreement (Relationship of Parties)
In addition to the compensation payable to the Consultant pursuant to Section {X} above, the Company shall reimburse the Consultant for preapproved reasonable and documented travel, hotel, food, telefone and telefax and other expenses incurred by the Consultant in connection with providing services to the Company pursuant to this Agreement. Except as set forth above, the Consultant shall pay and be wholly responsible for (i) all of the Consultant's travel, overhead and other expenses and (ii) the compensation, benefits and medical, health and other insurance coverage, for any of Consultant's employees or agents who render services to the Company hereunder - (International Contracting: Law and Practice - Larry A. DiMatteo - §7.06 - S. 285).
Expenses
Except as otherwise expressly set forth in this Agreement, each Party will bear its own costs and expenses, including fees and expenses of legal counsel and other representatives used or hired in connection with the transactions described in this Agreement.
2005
Loan Contract
Expenses; Indemnity
The Borrower agrees to pay all reasonable out-of-pocket expenses incurred by the Lender in connection with its due diligence and the financial analysis of the Borrower, the preparation and administration of this Agreement and the other Loan Documents, any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) or incurred by the Lender in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents or in connection with the Loans made hereunder, including in each case the fees, charges and disbursements of counsel, accountants, financial advisers and other experts engaged by the Lender (including the allocated fees of in-house counsel).
2008
Expenses; Indemnification for Litigation
(...) The Borrower shall be obligated to pay (i) all out-of-pocket expenses of the Administrative Agent, including fees and disbursements of the law firm acting as special counsel for the Lenders and the Administrative Agent and such local counsel as may be retained by the Administrative Agent on behalf of the Lenders and the Administrative Agent, in connection with the preparation and administration of the Financing Documents, any waiver or amendment of any provision thereof, or any Default or alleged Default hereunder (...)
2011
Attorney's Fees
If an action shall be brought on this Note, the losing party shall pay immediately upon demand all costs and expenses of the prevailing party, including reasonable attorneys' fees. The obligations set forth in this paragraph are separate and several, shall survive the discharge of this Note and the merger of this Note into any judgment on this Note.
2011
Bank Expenses
All Bank Expenses (including reasonable attorneys' fees and expenses for documentation and negotiation of this Agreement) incurred through and after the Effective Date, when due.
2012
Attorneys' Fees; Expenses
Borrower agrees to pay upon demand all of Lender's costs and expenses, including Lender's reasonable attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Agreement. Lender may hire or pay someone else to help enforce this Agreement, and Borrower shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's reasonable attorneys' fees and legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Borrower also shall pay all court costs and such additional fees as may be directed by the court.
2012
Miscellaneous
The Borrower shall pay the Lender all reasonable and documented out-of-pocket expenses and legal fees incurred by the Lender in connection with the preparation, administration and enforcement of this Agreement or any instruments or agreements executed in connection herewith. All amounts due under this Paragraph X shall be payable within ten Business Days after receipt by the Borrower of a reasonably detailed invoice therefor.
2013
Bankruptcy Agreement
Compensation and Reimbursement for Services related to Distributions
Each Third Party Disbursing Agent providing services related to distributions pursuant to the Plan will receive from Reorganized C&A Corporation reasonable compensation for such services and reimbursement of reasonable out-of-pocket expenses incurred in connection with such services without Bankruptcy Court approval. These payments will be made on terms agreed to with Reorganized C&A Corporation and will not be deducted from distributions to be made pursuant to the Plan to Holders of Allowed Claims (including any distributions of Cash Investment Yield) receiving distributions from a Third Party Disbursing Agent.
2006
Dissolution of Committee
(...) The Professionals for the Committee shall be entitled to reasonable compensation and reimbursement of actual, necessary and reasonable expenses for post-Effective Date activities authorized hereunder ten (10) days following the submission of invoices to the Liquidating Trustee for the applicable period, to be no less than monthly, without further order of the Bankruptcy Court, provided, however, the Liquidating Trustee may object to the reasonableness of the amounts in such invoices prior to the expiration of such ten (10) day period. If the parties do not resolve such dispute consensually, the Committee may seek approval from the Bankruptcy Court upon no less than fourteen (14) days written notice to the Liquidating Trustee and the Office of the United States Trustee (...)
2011
Merger Agreement
Expenses
Whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expense (...)
2013
Expenses
Whether or not the Merger is consummated, all fees and expenses incurred in connection with the Merger including all legal, accounting, financial advisory, consulting (excluding the fees of any officer), and all other fees and expenses of third parties (excluding the cost of the Tail Policy) incurred by a party in connection with the negotiation and effectuation of the terms and conditions of this Agreement and the transactions contemplated hereby, including, in the case of the Company and its subsidiaries, any bonuses or other change of control payments paid or to be paid to employees or consultants of the Company or any of its subsidiaries and excluding (x) any Transaction Payroll Taxes, (y) any expenses incurred in the negotiation of an abandoned sale transaction with any third party that have been paid prior to the Closing (it being acknowledged and agreed that any such expenses that have not been paid prior to the Closing shall not be excluded pursuant to clause Y and Z any expenses paid prior to the Closing to the extent such payment is reflected in the Closing Cash Amount (such Company expenses, the Third Party Expenses​), shall be the obligation of the respective party incurring such fees and expenses. Prior to the Closing, the Company shall provide to Parent a statement of estimated Third Party Expenses incurred by the Company and its subsidiaries in a form reasonably satisfactory to Parent (the Statement of Expenses​). The Statement of Expenses shall be accompanied by invoices from the Company's legal, accounting, financial and other advisors (excluding any officer's compensation) providing services in connection with the negotiation and effectuation of the terms and conditions of this Agreement and the transactions contemplated hereby reflecting such advisors' final billable Third Party Expenses. The amount of any Third Party Expenses reflected on the Statement of Expenses shall be deducted from the Merger Consideration pursuant to Section X hereof. The amount of any Third Party Expenses of the Company or its subsidiaries that are not reflected on the Statement of Expenses (Excess Third Party Expenses​) shall be subject to the indemnification provision of Section X hereof and shall not be limited by the Threshold Amount (as defined in Section X hereof) or the maximum amount of indemnification provided in Section X.
2014
Novation Agreement
Further Assurance & Costs and Expenses
Each party to this Novation Agreement shall at all times hereinafter and at their own cost and expense make, do and execute or cause to be made, done or executed all such acts, instruments, assurances and writings whatsoever as may be reasonable to perform or give effect to this Novation Agreement. The New Licensee shall bear all the costs and expenses incurred by the Licensor arising out of or in connection with this Novation Agreement and all related documentation prepared in consequence of this Novation Agreement.
2008
Joint Venture
Financing, Taxing, Auditing and Profit Distribution
In case a Party considers it is necessary to employ a foreign auditor registered in another country to undertake annual financial checking and examination, the other Party shall give its consent. All the expenses thereof shall be borne by such Party.
2006
Costs
Each party will bear its own costs of negotiating and agreeing this Memorandum of Agreement and any documents or agreements contemplated herein.
2006
Ancillary Agreements
In the event of any Ancillary Agreement that is not described on Exhibit X, the improvements and/or services and benefits required for the Company to have the benefits thereunder shall be provided by X or Y to the Company, and X's only fee shall be a reimbursement of X's out-of-pocket cost to provide such improvements and/or services and benefits.
2007
Lease Contract
Other Miscellaneous Obligations
The Tenant covenants and agrees with the Landlord (...) to pay to the Landlord on demand all the Landlord's reasonable and proper costs (including without limiting the generality of the foregoing those of the Landlord's managing agents, solicitors, surveyors and other professional advisers) incurred in connection with any application for the licence approval or consent of the Landlord (even if the licence approval or consent is not given or the application is withdrawn (but not where a Court declares that such approval or consent is unreasonably refused or granted subject to unreasonable conditions).
2009
Costs
The Surety agrees to pay to the Landlord on completion of this deed all costs charges and expenses (including any VAT) incurred by the Landlord in connection with the preparation negotiation and completion of this deed.
2009
Legal Expenses
All the related taxes and expenses hereunder shall be paid by Party A and Party B in accordance with the laws and regulations of the People's Republic of China and the relevant provisions of Beijing Municipal Government.
2010
Mortgage Financing Contract
Impositions
The Mortgagor will pay all reasonable expenses of the Mortgagee in connection with any consent of the Mortgagee required pursuant to this Section X, including, without limitation, in connection with the review of any plans and specifications in connection therewith.

2004
Economic Development Agreement
Attorney Fees and Expenses

In the event that X should default under any of the provisions of this Agreement and the City should employ attorneys or incur other expenses for the collection of the payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of X herein contained, X agrees to pay to the City reasonable fees of such attorneys and such other expenses so incurred by the City. 


2007
2. Contractual Limitation to Costs of Performance
Asset Management Agreement
Third Party Costs and Expenses
Party A shall not be obligated to bear any costs and expenses relating to the Investment Management Services other than those stipulated in the Agreement.
2003
A project of CENTRAL, University of Cologne.