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16.
Transactions entered into as agent===
16.1 Power for Lender to enter into Loans as agent
Subject to the following provisions of this paragraph, Lender may (if so indicated in paragraph 6 of the Schedule) enter into Loans as agent (in such capacity, the "Agent") for a third person (a “Principal”), whether as custodian or investment manager or otherwise (a Loan so entered into being referred to in this paragraph as an “Agency Transaction”).
16.2 Conditions for agency loan
A Lender may enter into an Agency Transaction if, but only if: —
- (i) it specifies that Loan as an Agency Transaction at the time when it enters into it;
- (ii) it enters into that Loan on behalf of a single Principal whose identity is disclosed to Borrower (whether by name or by reference to a code or identifier which the Parties have agreed will be used to refer to a specified Principal) at the time when it enters into the Loan or as otherwise agreed between the Parties; and
(iii) it has at the time when the Loan is entered into actual authority to enter into the Loan and to perform on behalf of that Principal all of that Principal’s obligations under the agreement referred to in paragraph 16.4(ii).
16.3 Notification by Lender of certain events affecting the principal
Lender undertakes that, if it enters as agent into an Agency Transaction, forthwith upon becoming aware: —
- (i) of any event which constitutes an Act of Insolvency with respect to the relevant Principal; or
- (ii) of any breach of any of the warranties given in paragraph 16.5 or of any event or circumstance which has the result that any such warranty would be untrue if repeated by reference to the then current facts;
it will inform Borrower of that fact and will, if so required by Borrower, furnish it with such additional information as it may reasonably request,
16.4 Agency Transaction
- (i) Each Agency Transaction shall be a transaction between the relevant Principal and Borrower and no person other than the relevant Principal and Borrower shall be a party to or have any rights or obligations under an Agency Transaction. Without limiting the foregoing, Lender shall not be liable as principal for the performance of an Agency Transaction, but this is without prejudice to any liability of Lender under any other provision of this clause; and
- (ii) all the provisions of the Agreement shall apply separately as between Borrower and each Principal for whom the Agent has entered into an Agency Transaction or Agency Transactions as if each such Principal were a party to a separate agreement with Borrower in all respects identical with this Agreement other than this paragraph and as if the Principal were Lender in respect of that agreement;
PROVIDED THAT
if there occurs in relation to the Agent an Event of Default or an event which would constitute an Event of Default if Borrower served written notice under any subclause of paragraph 14, Borrower shall be entitled by giving written notice to the Principal (which notice shall be validly given if given to Lender in accordance with paragraph 21) to declare that by reason of that event an Event of Default is to be
treated as occurring in relation to the Principal. If Borrower gives such a notice then an Event of Default shall be treated as occurring in relation to the Principal at the time when the notice is deemed to be given; and
if the Principal is neither incorporated in nor has established a place of business in Great Britain, the Principal shall for the purposes of the agreement referred to in paragraph 16.4(ii) be deemed to have appointed as its agent to receive on its behalf service of process in the courts of England the Agent, or if the Agent is neither incorporated nor has established a place of business in Great Britain, the person appointed by the Agent for the purposes of this Agreement, or such other person as the Principal may from time to time specify in a written notice given to the other Party.
The foregoing provisions of this paragraph do not affect the operation of the Agreement as between Borrower and Lender in respect of any transactions into which Lender may enter on its own account as principal.
16.5 Warranty of authority by Lender acting as agent
Lender warrants to
Borrower that it will, on every occasion on which it enters or purports to enter into a transaction as an
Agency Transaction, have been duly authorised to enter into that
Loan and perform the obligations arising under such transaction on behalf of the person whom it specifies as the
Principal in respect of that transaction and to perform on behalf of that person all the obligations of that person under the agreement referred to in paragraph
16.4(ii).