In a Nutshell™ Clause Agency Annex:
Template:Nutshell GMSLA Agency Annex
2010 GMSLA full text of Clause Agency Annex:
Agency Annex 1.1 Power for Lender to enter into Loans as agent
Subject to the following provisions of this paragraph, Lender may 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 Loan).
If the Lender has indicated in paragraph Schedule 8 of the Schedule that it may act as Agent, it must identify each Loan in respect of which it acts as Agent as an Agency Loan at the time it is entered into. If the Lender has indicated in paragraph Schedule 8 of the Schedule that it will always act as Agent, it need not identify each Loan as an Agency Loan.
1.2 Pooled Principal transactions
The Lender may enter into an Agency Loan on behalf of more than [one] Principal and accordingly the addendum hereto for pooled principal transactions shall apply.]
1.3 Conditions for Agency Loan
A Lender may enter into an Agency Loan if, but only if:
- (a) it provides to Borrower, prior to effecting any Agency Loan, such information in its possession necessary to complete all required fields in the format generally used in the industry, or as otherwise agreed by Agent and Borrower (Agreed Format), and will use its best efforts to provide to Borrower any optional information that may be requested by the Borrower for the purpose of identifying such Principal (all such information being the Principal Information). Agent represents and warrants that the Principal Information is true and accurate to the best of its knowledge and has been provided to it by Principal;
- (b) 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) either at the time when it enters into the Loan or before the Close of Business on the next Business Day after the date on which Loaned Securities are transferred to the Borrower in the Agreed Format or as otherwise agreed between the Parties; and
- (c) 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 Agency Annex 1.5(b) below.
Agent agrees that it will not effect any Loan with Borrower on behalf of any Principal unless Borrower has notified Agent of Borrower's approval of such Principal, and has not notified Agent that it has withdrawn such approval (such Principal, an Approved Principal), with both such notifications in the Agreed Format.
Borrower acknowledges that Agent shall not have any obligation to provide it with confidential information regarding the financial status of its Principals; Agent agrees, however, that it will assist Borrower in obtaining from Agent’s Principals such information regarding the financial status of such Principals as Borrower may reasonably request.
Agency Annex 1.4 Notification by Agent of certain events affecting any Principal
Agent undertakes that, if it enters as agent into an Agency Loan, forthwith upon becoming aware:
- (a) of any event which constitutes an Act of Insolvency with respect to the relevant Principal; or
- (b) of any breach of any of the warranties given in paragraph Agency Annex 1.6 below or of any event or circumstance which results in any such warranty being 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 to the extent that such information is readily obtainable by Agent.
1.5. Status of Agency Loan
- (a) Each Agency Loan 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 Loan. Without limiting the foregoing, Agent shall not be liable as Principal for the performance of an Agency Loan, but this is without prejudice to any liability of Agent under any other provision of this Annex; and
- (b) all the provisions of the Agreement shall apply separately as between Borrower and each Principal for whom the Agent has entered into an Agency Loan or Agency Loans as if each such Principal were a party to a separate Agreement with Borrower in all respects identical with this Agreement other than this Annex and as if the Principal were Lender in respect of that Agreement; provided that
- (i) 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 sub clause of paragraph 10 of the Agreement, Borrower shall be entitled by giving written notice to the Principal (which notice shall be validly given if given in accordance with paragraph 20 of the Agreement) 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
- (ii) 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 1.5(b) above 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.
If Lender has indicated in paragraph Schedule 6 of the Schedule that it may enter into Loans as Agent, the foregoing provisions of this paragraph do not affect the operation of the Agreement as between Borrower and Lender in respect of any Loans into which Lender may enter on its own account as Principal.
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