THE AGENT, THE ARRANGER AND THE BANKS. 25.1 Appointment of the Agent The Arranger and each of the Banks hereby appoints the Agent to act as its agent in connection herewith and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto. 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 (a) any representation made or deemed to be made by an Obligor in connection with the Finance Documents is true, (b) no Event of Default or Potential Event of Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested 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 by such Bank in writing prior to the date hereof (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace its Facility Office and act upon any such notice until the same is superseded by a further such notice; 25.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained; 25.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor upon a certificate signed by or on behalf of such Obligor; 25.2.5 rely upon any communication or document believed by it to be genuine; 25.2.6 refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised; 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 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 VAT thereon which it will or may expend or incur in complying with such instructions; and 25.2.8 assume (unless it has specific notice to the contrary) that any notice or request made by the Account Party is made on behalf of both Obligors. 25.3 Agent's Obligations The Agent shall: 25.3.1 promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an Obligor under the Finance Documents and shall promptly deliver to each Bank a copy of each Letter of Credit delivered to Lloyd's pursuant to Clause 3.3 (Completion of Letters of Credit); 25.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor in the due performance of or compliance with its obligations under the Finance Documents of which the Agent has notice from any other party hereto; 25.3.3 save as otherwise 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 Arranger and the Banks; and 25.3.4 if so instructed by the Majority Banks, refrain from exercising any right, power or discretion vested in it as agent under the Finance Documents. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature. 25.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor the Arranger shall: 25.4.1 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 Default, (c) the performance by an Obligor of its obligations under the Finance Documents or (d) any breach of or default by an Obligor of or under its obligations under the Finance Documents; 25.4.2 be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account; 25.4.3 be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arranger, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit of any person; 25.4.4 be under any obligations other than those for which express provision is made herein; or
Appears in 2 contracts
Samples: Letter of Credit Facility Agreement (Ace LTD), Letter of Credit Facility Agreement (Ace LTD)
THE AGENT, THE ARRANGER AND THE BANKS. 25.1 Appointment of 29.01 Each Bank and the Agent The Arranger and each of the Banks hereby appoints the Agent to act as its agent in connection with the Financing Documents herewith and authorises the Agent Agent:
(i) to execute and deliver on its behalf the Intercreditor Agreement and any other Financing Document approved by it and which requires to be executed by it or on its behalf;
(ii) to release any security constituted by the Security Documents which requires to be released in connection with any Permitted Disposal; and
(iii) to exercise such rights, powers, authorities powers and discretions as are specifically delegated to the Agent by the terms hereof thereof together with all such rights, powers, authorities powers and discretions as are reasonably incidental thereto. The relationship between the Agent and the Arranger and each Bank is that of agent and principal only unless otherwise specifically provided in any of the Financing Documents. Except as specifically set out in the Financing Documents, the Arranger has no duties of any kind to any other person under or in connection with any of the Financing Documents.
25.2 Agent's Discretions 29.02 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 (i) assume that:
(a) any representation made or deemed to be made by an Obligor any member of the Group in connection with the Finance Financing Documents is true, ;
(b) no Event of Default or Potential Event of Default has occurred, ; and
(c) no Obligor none of the members of the Group is in breach of or default under its their respective obligations under the Finance Documents and (d) any rightFinancing Documents, power, authority unless it has actual knowledge or discretion vested therein upon actual notice to the Majority Banks, the Banks or any other person or group of persons has not been exercisedcontrary;
25.2.2 (ii) assume that the Facility Office of each Bank is that notified to it by such Bank identified with its signature below or in writing prior to the date hereof (or, in the case of a Transferee, at the end of the any Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace its Facility Office and act upon any such notice until the same is superseded by a further such notice;
25.2.3 (iii) engage and pay for the advice or services of any lawyers, accountants, surveyors surveyors, valuers or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained;
25.2.4 (iv) rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor any member of the Group upon a certificate signed by or on behalf of such Obligormember;
25.2.5 (v) rely upon any communication or document believed by it to be genuine;
25.2.6 (vi) refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by the Majority Banks an Instructing Group as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should would be exercised;; and
25.2.7 (vii) refrain from acting in accordance with any instructions of the Majority Banks an Instructing Group to begin any legal action or proceeding arising out of or in connection with the Finance Financing 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 VAT thereon which it will or may expend or incur in complying with such instructions; and
25.2.8 assume (unless it has specific notice to the contrary) that any notice or request made by the Account Party is made on behalf of both Obligors.
25.3 Agent's Obligations 29.03 The Agent shall:
25.3.1 (i) promptly inform each Bank of the contents of any notice all relevant notices or document documents received by it in its capacity as the Agent from an Obligor under any member of the Finance Documents and shall promptly deliver to each Bank a copy of each Letter of Credit delivered to Lloyd's pursuant to Clause 3.3 (Completion of Letters of Credit)Group hereunder;
25.3.2 (ii) promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor in the due performance of or compliance with its obligations under the Finance Documents of which the Agent has notice from any other party heretoactual knowledge or actual notice;
25.3.3 (iii) save as otherwise provided hereinin the Financing Documents, act as agent under in connection with the Finance Financing Documents in accordance with any instructions given to it by an Majority BanksInstructing Group, which instructions shall be binding on the Arranger and all of the Banks; and
25.3.4 (iv) if so instructed by the Majority Banksan Instructing Group, grant any Waiver Letter or refrain from exercising any right, power or discretion vested in it as agent under the Finance Financing Documents. .
29.04 The Agent may with the agreement of the Borrower and an Instructing Group amend any term of any of the Financing Documents except if the effect of such amendment would be to:
(i) increase any Bank’s Commitment or amend the Applicable Margin;
(ii) change the definition of Instructing Group;
(iii) extend the due date, or alter the currency of, or reduce the amount of any payment due to that Bank under the Financing Documents to which it is a party;
(iv) amend the terms of this Clause 29.04;
(v) release any security constituted by the Security Documents other than security released in connection with any Permitted Disposal; or
(vi) alter the priority of any liabilities under the Financing Documents, in which case the consent of the Borrower and all of the Banks will be required.
29.05 Where the Agent’s consent or determination or waiver or satisfaction is requested in connection with the Financing Documents such consent or determination or waiver or satisfaction shall be given only in writing.
29.06 Where the Agent is instructed or authorised by an Instructing Group pursuant to Clauses 29.03(iii) or 29.03(iv) those Banks who do not form part of an Instructing Group hereby waive any rights which they may have against the Agent in respect of the Agent's duties under giving any consent, determination, assurance, satisfaction or waiver or the Finance Documents are solely mechanical Agent's refraining from exercising any right, power or discretion and administrative the Banks shall indemnify the Agent in naturerespect of any loss it may suffer as a result of taking or failing to take such action.
25.4 Excluded Obligations 29.07 Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor and the Arranger shallshall not:
25.4.1 (i) be bound to enquire as to to:
(a) whether or not any representation made or deemed to be made by an any Obligor in connection with the Finance Financing Documents is true, ;
(b) the occurrence or otherwise of any event which is or may become an Event of Default or Potential Event of Default, ;
(c) the performance by an any Obligor of its obligations under the Finance Documents or Financing Documents;
(d) any breach of or default by an Obligor any of the Obligors of or under its obligations under the Finance Financing Documents;
25.4.2 (ii) be bound to account to any Bank for any sum or the profit element of any sum received by it for its the Agent's own account;
25.4.3 (iii) be bound to disclose to any person other person than a Bank any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arranger, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit regulation or duty of any personconfidentiality;
25.4.4 (iv) be under any obligations other than those for which express provision is made herein;
(v) be bound to examine or enquire into or be responsible for the legality, validity, effectiveness, adequacy or enforceability of any of the Financing Documents or any agreement, assignment or other document relating thereto or its ability to exercise the rights, trusts, powers, authorities and discretions thereby conferred and so that neither the Agent or the Arranger shall be responsible for its inability to exercise any of the same or for any loss or damage thereby arising; or
(vi) be bound to take any steps or perform any obligation or exercise any right or fulfil any request if to do so might in its sole opinion breach of conflict with or contradict or be contrary to any rule, regulation, law, regulatory requirement, court order or judgment in any jurisdiction or expose either of the Agent or the Arranger to any liabilities in any jurisdiction.
29.08 Each Bank shall, from time to time on demand by the Agent, indemnify the Agent against its Pro Rata Percentage of any and all costs, claims, expenses (including legal fees) and liabilities which the Agent may incur in acting in its capacity as agent hereunder save to the extent arising as a result of the gross negligence or wilful default of the Agent.
29.09 Neither the Agent nor the Arranger accepts any responsibility for the accuracy and/or completeness of the Accountants Report, the Due Diligence Reports or of any information supplied by any member of the Group in connection herewith or for the legality, validity, effectiveness, adequacy or enforceability of the Financing Documents or any of them and neither the Agent nor the Arranger shall not be under any liability as a result of taking or omitting to take any action in relation to the Financing Documents or any of them.
29.10 Each of the Banks agrees that it will not assert or seek to assert against any director, officer or employee of the Agent or the Arranger any claim it might have against any of them in respect of the matters referred to in Clause 29.08.
29.11 The Agent may accept deposits from, lend money to and generally engage in any kind of banking or other business on its own account with each member of the Group.
29.12 The Agent may following prior consultation with the Borrower and in accordance with the terms of Clause 32.04 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.
29.13 If the Agent gives notice of its resignation pursuant to Clause 29.12, then any reputable and experienced bank or other financial institution may following consultation with the Borrower 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 within sixty days of the giving of such notice may following consultation with the Borrower itself appoint such a successor.
29.14 If a successor to the Agent is appointed under the provisions of Clause 29.13, then (i) the retiring Agent shall be discharged from any further obligation hereunder but shall remain entitled to the benefit of the provisions of this Clause 29 and (ii) its successor and each of the other parties hereto shall have the same rights and obligations amongst themselves as they would have had if such successor had been a party hereto.
29.15 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, credit-worthiness, condition, affairs, status and nature of the Group and each member thereof and, accordingly, each Bank warrants to the Agent and the Arranger that it has not relied and will not hereafter rely on the Agent or the Arranger:
(i) to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by or on behalf of the Group and each member thereof in connection with the Financing Documents or the transactions herein contemplated (whether or not such information has been or is hereafter circulated to such Bank by the Agent or the Arranger); or
(ii) to assess or keep under review on its behalf the financial condition, credit-worthiness, condition, affairs, status or nature of the Group and each member thereof.
29.16 Without prejudice to the rights of the Agent pursuant to the Financing Documents an Instructing Group may resolve to remove the Agent from its appointment hereunder and on receipt by the Agent of notice of such resolution the provisions of Clauses 29.12, 29.13 and 29.14 shall apply mutatis mutandis as if the Agent had given the requisite notice under Clause 29.12 and the period of such notice had expired.
Appears in 1 contract
THE AGENT, THE ARRANGER AND THE BANKS. 25.1 26.1 Appointment of the Agent The Each of the Arranger and each of the Banks hereby appoints the Agent to act as its agent in connection herewith and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto.
25.2 26.2 Agent's Discretions The Agent may:
25.2.1 26.2.1 assume, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any a)any representation made or deemed to be made by an Obligor in connection with the Finance Documents herewith is true, (b) no Event of Default or Potential Event of Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents hereunder and (d) any right, power, authority or discretion vested therein herein upon the Majority Banksan Instructing Group, the Banks or any other person or group of persons has not been exercised;
25.2.2 26.2.2 assume that the Facility Office of each Bank is that notified to it by such Bank in writing prior to the date hereof (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace its Facility Office and act upon any such notice until the same is superseded by a further such notice;
25.2.3 26.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained;
25.2.4 26.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor upon a certificate signed by or on behalf of such Obligor;
25.2.5 26.2.5 rely upon any communication or document believed by it to be genuine;
25.2.6 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 an Instructing Group as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;; and
25.2.7 26.2.7 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 the Finance Documents 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 VAT thereon which it will or may expend or incur in complying with such instructions; and
25.2.8 assume (unless it has specific notice to the contrary) that any notice or request made by the Account Party is made on behalf of both Obligors.
25.3 Agent's Obligations The Agent shall:
25.3.1 promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from an Obligor under the Finance Documents and shall promptly deliver to each Bank a copy of each Letter of Credit delivered to Lloyd's pursuant to Clause 3.3 (Completion of Letters of Credit);
25.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor in the due performance of or compliance with its obligations under the Finance Documents of which the Agent has notice from any other party hereto;
25.3.3 save as otherwise 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 Arranger and the Banks; and
25.3.4 if so instructed by the Majority Banks, refrain from exercising any right, power or discretion vested in it as agent under the Finance Documents. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
25.4 Excluded Obligations Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor the Arranger shall:
25.4.1 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 Default, (c) the performance by an Obligor of its obligations under the Finance Documents or (d) any breach of or default by an Obligor of or under its obligations under the Finance Documents;
25.4.2 be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
25.4.3 be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to the Agent or, as the case may be, the Arranger, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit of any person;
25.4.4 be under any obligations other than those for which express provision is made herein; or
Appears in 1 contract
THE AGENT, THE ARRANGER AND THE BANKS. 25.1 Appointment of the Agent The Arranger and each of the Banks 31.1 Each Bank hereby appoints the Agent to act as its agent in connection herewith with the Finance Documents and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof of any of the Finance Documents together with all such rights, powers, authorities and discretions as are reasonably incidental theretothereto provided that the Agent shall not initiate any legal action or proceedings before a court of law on behalf of any Bank without its prior written consent.
25.2 Agent's Discretions 31.2 The Agent may:
25.2.1 assume31.2.1 assume that:
(a) any representation made by any of the Obligors in connection with any of the Finance Documents is true;
(b) no Event of Default or Potential Event of Default has occurred (unless it has actual knowledge of an Event of Default or Potential Event of Default arising under sub-clause 22.1.1 of Clause 22 (Events of Default));
(c) none of the Obligors is in breach of or default under its obligations under any of the Finance Documents; and
(d) any right, power, authority or discretion vested in any of the Finance Documents upon an Instructing Group, the Banks or any other person or group of persons has not been exercised, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by an Obligor in connection with the Finance Documents is true, (b) no Event of Default or Potential Event of Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested therein upon the Majority Banks, the Banks or any other person or group of persons has not been exercised;
25.2.2 31.2.2 assume that the Facility Office of each Bank is that notified to it by such Bank in writing prior to the date hereof identified with its signature below (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace its Facility Office and act upon any such notice until the same is superseded by a further such notice;
25.2.3 31.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained;
25.2.4 31.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor any of the Obligors upon a certificate signed by or on behalf of such Obligor;
25.2.5 31.2.5 rely upon any communication or document believed by it to be genuine;
25.2.6 31.2.6 refrain from exercising any right, power or discretion vested in it as agent hereunder under any of the Finance Documents unless and until instructed by the Majority Banks an Instructing Group as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;; and
25.2.7 31.2.7 refrain from acting in accordance with any instructions of the Majority Banks an Instructing Group to begin any legal action or proceeding arising out of or in connection with any of 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 VAT thereon which it will or may expend or incur in complying with such instructions; and
25.2.8 assume (unless it has specific notice to the contrary) that any notice or request made by the Account Party is made on behalf of both Obligors.
25.3 Agent's Obligations 31.3 The Agent shall:
25.3.1 31.3.1 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 Finance Documents and shall promptly deliver to each Bank a copy of each Letter of Credit delivered to Lloyd's pursuant to Clause 3.3 (Completion of Letters of Credit)Obligors hereunder;
25.3.2 31.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor any of the Obligors in the due performance of or compliance with its obligations under any of the Finance Documents of which the Agent has notice from any other party hereto;
25.3.3 31.3.3 save as otherwise provided herein, act as agent under the Finance Documents in accordance with any instructions given to it by an Majority BanksInstructing Group, which instructions shall be binding on the Arranger and all of the Banks; and
25.3.4 31.3.4 if so instructed by the Majority Banksan Instructing Group, refrain from exercising any right, power or discretion vested in it as agent under any of the Finance Documents. The Agent's ’s duties under the Finance Documents are solely mechanical and administrative in nature.
25.4 Excluded Obligations 31.4 Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor Agent, the Arranger nor any of them shall:
25.4.1 31.4.1 be bound to enquire as to to:
(a) whether or not any representation made or deemed to be made by an Obligor any of the Obligors in connection with any of the Finance Documents is true, ;
(b) the occurrence or otherwise of any Event of Default or Potential Event of Default, ;
(c) the performance by an Obligor any of the Obligors of its obligations under any of the Finance Documents or Documents; or
(d) any breach of or default by an Obligor any of the Obligors of or under its obligations under the any Finance DocumentsDocument;
25.4.2 31.4.2 be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account;
25.4.3 31.4.3 be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, information expressly stated to the Agent or, as the case may be, the Arranger, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or regulation or be otherwise actionable at the suit of any person;
25.4.4 31.4.4 be under any obligations other than those for which express provision is made hereinin any of the Finance Documents;
31.4.5 be or be deemed to be a fiduciary for any other party hereto; or
31.4.6 be under any obligation to carry out any “know your customer” or other checks in relation to any person on behalf of any Bank and each Bank confirms to the Agent and the Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arranger.
31.5 Each Bank shall, in its Proportion, from time to time on demand by the Agent, indemnify the Agent, against any and all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT or similar tax thereon which the Agent may incur, otherwise than by reason of its own gross negligence or wilful misconduct, in acting in its capacity as agent under the Finance Documents.
31.6 Except in the case of gross negligence or wilful default, none of the Agent or the Arranger accepts any responsibility:
31.6.1 for the adequacy, accuracy and/or completeness of any information supplied by the Agent or the Arranger, by an Obligor or by any other person in connection with the Finance Documents, the transactions therein contemplated or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents;
31.6.2 for the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; or
31.6.3 for the exercise of, or the failure to exercise, any judgement, discretion or power given to any of them by or in connection with the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents. Accordingly, none of the Agent and the Arranger shall be under any liability (whether in negligence or otherwise) in respect of such matters, save in the case of gross negligence or wilful misconduct.
31.7 Each of the Banks agrees that it will not assert or seek to assert against any director, officer or employee of the Agent or the Arranger any claim it might have against any of them in respect of this Agreement and any officer, employee or agent of the Agent may rely on this Clause subject to Clause 1.8 of Clause 1 (Interpretation) and the provisions of the Third Parties Act.
31.8 The Agent and the Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.
31.9 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 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 31 and has agreed in writing with the other Parties to act as Agent and be bound by the Finance Documents accordingly.
31.10 If the Agent gives notice of its resignation pursuant to Clause 31.9 of this Clause 31, then any reputable and experienced bank or other financial institution may be appointed as a successor to the Agent by an Instructing Group (with the consent of the Guarantor) during the period of such notice but, if no such successor is so appointed, the Agent (with the consent of the Guarantor) may appoint such a successor itself.
31.11 If a successor to the Agent is appointed under the provisions of Clause 31.10 of this Clause 31, then (a) the retiring Agent shall be discharged from any further obligation hereunder in respect of the period after its retirement but shall remain entitled to the benefit of the provisions of this Clause 31 and (b) its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been a Party.
31.12 It is understood and agreed by each Bank that at all times it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigation into all risks arising under or in connection with the Finance Documents including, but not limited to:
31.12.1 the financial condition, creditworthiness, condition, affairs, status and nature of each member of the Group;
31.12.2 the legality, validity, effectiveness, adequacy and enforceability of the Finance Documents and any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents;
31.12.3 whether such Bank has recourse, and the nature and extent of that recourse, against an Obligor or any other person or any of their respective assets under or in connection with the Finance Documents, the transactions therein contemplated or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; and
31.12.4 the adequacy, accuracy and/or completeness of information provided by the Agent or the Arranger, an Obligor, or by any other person in connection with the Finance Documents, the transactions contemplated therein or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents. Accordingly, each Bank acknowledges to the Agent and the Arranger that it has not relied on and will not hereafter rely on the Agent and the Arranger or any of them in respect of any of these matters.
31.13 In acting as agent hereunder for the Banks, 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 Clause 31, any information received by some other division or department of the Agent may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
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