COVENANTS BY THE ISSUER AND THE GUARANTORS. Each of the Issuer and each Guarantor severally covenants with the Trustee that, so long as any of the Notes remains outstanding (or, in the case of paragraphs (h), (i), (m), (n) and (o) so long as any of such Notes or the relative Coupons remains liable to prescription) it shall: (a) at all times carry on and conduct its affairs and procure its Subsidiaries to carry on and conduct their respective affairs in a proper and efficient manner; (b) give or procure to be given to the Trustee such opinions, certificates, information and evidence as it shall reasonably require and in such form as it shall reasonably require (including without limitation the procurement by the Issuer or the relevant Guarantor (as the case may be) of all such certificates called for by the Trustee pursuant to Clause 16(c)) for the purpose of the discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under these presents or by operation of law; (c) cause to be prepared and certified by the Auditors in respect of each financial accounting period accounts in such form as will comply with all relevant legal and accounting requirements and all requirements for the time being of the relevant Stock Exchange; (d) at all times keep and use all reasonable endeavours to procure its Subsidiaries keep proper books of account and allow the Trustee and any person appointed by the Trustee to whom the Issuer, the relevant Guarantor or the relevant Subsidiary (as the case may be) shall have no reasonable objection free access to such books of account at all reasonable times during normal business hours, provided that the Trustee shall only use information so obtained in connection with the performance of the discharge or execution of its duties, trusts, powers, authorities and discretions under these presents or by operation of law; (e) send to the Trustee (in addition to any copies to which it may be entitled as a holder of any securities of the Issuer or any Guarantor) two copies in English of every balance sheet, profit and loss account, report, circular and notice of general meeting in each case, which is public issued or sent to its shareholders (and every other public document issued or sent to its shareholders together with any of the foregoing), and every document issued or sent to creditors generally or to holders of securities other than its shareholders (including the Noteholders) generally as soon as practicable after the issue or publication thereof and in any event (in the case of balance sheets and/or profit and loss accounts) within 180 days after the end of the relevant financial period; (f) forthwith upon the Issuer becoming aware thereof give notice in writing to the Trustee of the occurrence of any Event of Default or Potential Event of Default; (g) give to the Trustee (i) within 14 days after demand by the Trustee therefor and (ii) (without the necessity for any such demand) promptly after the publication of its audited accounts in respect of each financial period commencing with the financial period ending 31 December, 2009 and in any event not later than 180 days after the end of each such financial period a certificate (in or substantially in the form set out in Schedule 4) signed by two Directors of the Issuer and two Directors of each Guarantor to the effect that to the best of the knowledge and belief of the Issuer and Guarantors, each having made appropriate investigations as at a date not more than ten days before delivering such certificate (the certification date) there did not exist and had not existed since the certification date of the previous certificate (or, in the case of the first such certificate, the date hereof) any Event of Default or any Potential Event of Default (or if such exists or existed specifying the same) and that during the period from and including the certification date of the last such certificate (or, in the case of the first such certificate, the date hereof) to and including the certification date of such certificate that each of the Issuer and each Guarantor has complied with all its obligations contained in these presents or (if such is not the case) specifying the respects in which it has not complied; (h) to the extent not prohibited by law, at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the sole opinion of the Trustee to give effect to these presents; (i) at all times maintain an Agent and other Paying Agents in accordance with the Conditions; (j) take all reasonable steps to procure that the Agent to notifies the Trustee forthwith in the event that it does not, on or before the due date for any payment in respect of the Notes or any of the relative Coupons, receive unconditionally pursuant to the Agency Agreement payment of the full amount in the requisite currency of the moneys payable on such due date on all such Notes or Coupons as the case may be; (k) in the event of the unconditional payment to the Agent or the Trustee of any sum due in respect of the Notes or any of them or any of the relative Coupons being made after the due date for payment thereof forthwith give or procure to be given notice to the relevant Noteholders in accordance with Condition 13 (Notices) that such payment has been made; (l) use its best endeavours to maintain the listing on the relevant Stock Exchange of those of the Notes which are listed on the relevant Stock Exchange or, if it is unable to do so having used its best endeavours or if the Trustee considers that the maintenance of such listings is unduly onerous and the Trustee is of the opinion that to do so would not be materially prejudicial to the interests of the Noteholders, use its best endeavours to obtain and maintain a quotation or listing of such Notes on such other stock exchange or exchanges or securities market or markets as the Issuer may (with the prior written approval of the Trustee) decide and also upon obtaining a quotation or listing of such Notes issued by it on such other stock exchange or exchanges or securities market or markets enter into a trust deed supplemental to this Trust Deed to effect such consequential amendments to these presents as the Trustee may require or as shall be requisite to comply with the requirements of any such stock exchange or securities market; (m) give notice to the Noteholders in accordance with Condition 13 (Notices) of any appointment, resignation or removal of any Agent, Calculation Agent or other Paying Agent (other than the appointment of the initial Agent, Calculation Agent and other Paying Agents) after having obtained the prior written approval of the Trustee thereto or any change of any Paying Agent's specified office and (except as provided by the Agency Agreement or the Conditions) at least 30 days prior to such event taking effect; PROVIDED ALWAYS THAT so long as any of the Notes remains outstanding in the case of the termination of the appointment of the Calculation Agent or so long as any of the Notes or Coupons remains liable to prescription in the case of the termination of the appointment of the Agent no such termination shall take effect until a new Agent or Calculation Agent (as the case may be) has been appointed on terms previously approved in writing by the Trustee; (n) send to the Trustee, not less than seven days prior to which any such notice is to be given, the form of every notice to be given to Noteholders in accordance with Condition 13 (Notices) and obtain the prior written approval of the Trustee to and promptly give to the Trustee two copies of, the final form of every notice to be given to the Noteholders in accordance with Condition 13 (Notices) (such approval, unless so expressed, not to constitute approval for the purposes of Section 21 of the FSMA of a communication within the meaning of Section 21 of the FSMA); (o) comply with and perform all its obligations under the Agency Agreement and use all reasonable endeavours to procure that the Agent and the other Paying Agents comply with and perform all their respective obligations thereunder and any notice given by the Trustee pursuant to Clause 2.3(a) and not make any amendment or modification to such Agreement without the prior written approval of the Trustee and use all reasonable endeavours to make such amendments to such Agreement as the Trustee may require; (p) in order to enable the Trustee to ascertain the nominal amount of the Notes of each Series for the time being outstanding for any of the purposes referred to in the proviso to the definition of outstanding in Clause 1, deliver to the Trustee forthwith upon being so requested in writing by the Trustee a certificate in writing signed by two Directors of the Issuer or the relevant Guarantor (as appropriate) setting out the total number and aggregate nominal amount of the Notes of each Series issued which: (i) up to and including the date of such certificate have been purchased by the Issuer, any Guarantor, or any Subsidiary of the Issuer or any Guarantor and cancelled; and (ii) are at the date of such certificate held by, for the benefit of, or on behalf of, the Issuer, any Guarantor, any Subsidiary of the Issuer or any Guarantor, any holding company of the Issuer or any Guarantor or any other Subsidiary of such holding company; (q) procure its Subsidiaries to comply with all applicable provisions of Condition 6.9 (Redemption and Purchases-Purchases); (r) use all reasonable endeavours to procure that each Paying Agent: (i) makes available for inspection or collection by Noteholders and Couponholders at its specified office; or (ii) sends by email (to Noteholders providing satisfactory proof of holding) copies of these presents, the Agency Agreement and the then latest audited balance sheet and profit and loss account (consolidated if applicable) of the Group; (s) promptly provide the Trustee with copies of all supplements and/or amendments and/or restatements of the Programme Agreement; (t) prior to making any modification or amendment or supplement to these presents, procure the delivery of (a) legal opinion(s) as to English and any other relevant law, addressed to the Trustee, dated the date of such modification or amendment or supplement, as the case may be, and in a form reasonably acceptable to the Trustee from legal advisers reasonably acceptable to the Trustee; and (u) give notice to the Trustee of the proposed redemption of the Notes of any Series at least 5 business days in London prior to the giving of any notice of redemption in respect of such Notes pursuant to Condition 13 (Notices); (v) if payments by the Issuer or the Guarantors of principal or interest in respect of the Notes or relative Coupons shall become subject generally to the taxing jurisdiction of any territory or any political sub-division or any authority therein or thereof having power to tax other than or in addition to the United Kingdom or any political sub-division or any authority therein or thereof having power to tax, immediately upon becoming aware thereof notify the Trustee of such event and (unless the Trustee otherwise agrees) enter forthwith into a trust deed supplemental to this Trust Deed, giving to the Trustee an undertaking or covenant in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 7 (Taxation) with the substitution for (or, as the case may be, the addition to) the references therein to the United Kingdom or any political sub-division thereof or any authority therein or thereof having power to tax of references to that other or additional territory or any political sub-division thereof or any authority therein or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid; such trust deed also (where applicable) to modify Condition 6.2 (
Appears in 1 contract
Samples: Seventh Supplemental Trust Deed
COVENANTS BY THE ISSUER AND THE GUARANTORS. Each of the Issuer and each Guarantor severally covenants with the Trustee that, so So long as any of the Notes remains outstanding (or, in the case of paragraphs (g), (h), (il), (m), (n) and (o) p), so long as any of such the Notes or the relative Coupons remains liable to prescription) each of the Issuer and (save where indicated otherwise) the Guarantors severally covenants with the Trustee that it shall:
(a) at all times carry on and conduct its affairs and procure its Subsidiaries to carry on and conduct their respective affairs in a proper and efficient manner;
(b) give or procure to be given to the Trustee such opinions, certificates, information and evidence as it shall reasonably require and in such form as it shall reasonably require (including without limitation the procurement by the Issuer or the relevant Guarantor Guarantors (as the case may be) of all such certificates called for by the Trustee pursuant to Clause 16(csubclause 16(b)) for the purpose of the discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under these presents or by operation of law;
(cb) cause to be prepared and if so required under the laws of its jurisdiction of incorporation certified by its independent auditors for the Auditors time being in respect of each financial accounting period accounts in such form as will comply with all relevant legal and accounting requirements and all requirements for the time being of the relevant Luxembourg Stock ExchangeExchange and, in the case of the Issuer only, Consolidated Financial Statements and Consolidated Quarterly Financial Statements containing the Consolidated Equity of the Group, and save that this sub-clause (b) shall only apply to each Guarantor to the extent that it is required by the laws of its country of incorporation to prepare accounts;
(dc) at all times keep and use all reasonable endeavours to procure its Subsidiaries keep proper books of account and allow the Trustee and any person appointed by the Trustee to whom the Issuer, the relevant Guarantor or the relevant Subsidiary (as the case may be) Guarantors shall have no reasonable objection free access to such books of account at all reasonable times during normal business hours, provided that the Trustee shall only use information so obtained in connection with the performance of the discharge or execution of its duties, trusts, powers, authorities and discretions under these presents or by operation of law;
(ed) send to the Trustee (in addition to any copies to which it may be entitled as a holder of any securities of the Issuer or the Guarantors) (i) in the case of the Issuer, a copy in English of its Consolidated Financial Statements in respect of each financial year commencing with the financial year ended 31 December 2010 promptly following its publication and in any Guarantor) two copies event not later than 180 days after the end of such financial year; and a copy in English of every balance sheet, profit and loss account, report, report circular and notice of general meeting in each case, which is public issued or sent to its shareholders (and every other public document issued or sent to its shareholders together with any of the foregoing), foregoing and every document issued or sent to creditors generally or to the holders of securities securities, other than its the shareholders (including the Noteholders) generally ), in each case as soon as practicable after the issue or publication thereof; and (ii) in the case of each Guarantor, a copy in its original language (accompanied by an English language translation) of its statutory financial statements in respect of each financial year commencing with the financial year ended 31 December 2010, promptly following the publication thereof and in any event (in the case of balance sheets and/or profit and loss accounts) within not later than 180 days after the end of such financial year, to the relevant extent such Guarantor is required by the laws of its country of incorporation to prepare financial periodstatements;
(fe) forthwith upon the Issuer becoming aware thereof give notice in writing to the Trustee upon becoming aware of the coming into existence of any security interest which would require any security to be given to the Notes pursuant to Condition 4.1 or of the occurrence of any Event of Default or any Potential Event of Default;Default or Change of Control or Change of Control Put Event;
(gf) in the case of the Issuer only, give to the Trustee (i) within 14 seven days after demand by the Trustee therefor and (ii) (without the necessity for any such demand) promptly after the publication of its audited accounts Consolidated Financial Statements in respect of each financial period year commencing with the financial period ending year ended 31 December, 2009 December 2010 and in any event not later than 180 days after the end of each such financial period year a certificate (in or substantially in the form set out in Schedule 4) 4 signed by two Directors of the Issuer and two Directors of each Guarantor to the effect that to the best of the knowledge and belief of the Issuer and Guarantorsthat, each having made appropriate investigations (a) as at a date not more than ten seven days before delivering such certificate (the certification date) there did not exist and had not existed since the certification date of the previous certificate (or, or in the case of the first such certificate, certificate the date hereof) any Event of Default or any Potential Event of Default or any Change of Control or any Change of Control Put Event (or if such exists or existed specifying the same) and (b) that during the period from and including the certification date of the last such certificate (or, or in the case of the first such certificate, certificate the date hereof) to and including the certification date of such certificate that each of the Issuer and each Guarantor the Guarantors has complied with all its obligations contained in these presents or (if such is not the case) specifying the respects in which it has not complied;
(hg) to the extent not prohibited so far as is permitted by law, at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the sole opinion of the Trustee to give effect to these presents;
(ih) at all times maintain an Agent and other Paying Agents in accordance with the Conditions;
(ji) take all reasonable steps use its best endeavours to procure that the Principal Paying Agent to notifies notify the Trustee forthwith in the event that it the Principal Paying Agent does not, on or before the due date for any payment in respect of the Notes or any of them or any of the relative Coupons, receive unconditionally pursuant to the Agency Agreement payment of the full amount in the requisite currency of the moneys payable on such due date on all such Notes or Coupons as the case may be;
(kj) in the event of the unconditional payment to the Principal Paying Agent or the Trustee of any sum due in respect of the Notes or any of them or any of the relative Coupons being made after the due date for payment thereof forthwith give or procure to be given notice to the relevant Noteholders in accordance with Condition 13 (Notices) that such payment has been made;
(lk) use its best endeavours to maintain the listing on the relevant Stock Exchange of those of the Notes which are listed on the relevant Luxembourg Stock Exchange or, if it is unable to do so having used its best endeavours or if it is agreed by the Trustee considers that the maintenance of such listings listing is unduly onerous or impractical and the Trustee is of the opinion that to do so would not be materially prejudicial to the interests of the Noteholders, use its best endeavours to obtain and maintain a quotation or listing of such the Notes on such other stock exchange or exchanges or securities market or markets as the Issuer may (with the prior written approval of the Trustee) decide and shall also upon obtaining a quotation or listing of such the Notes issued by it on such other stock exchange or exchanges or securities market or markets enter into a trust deed supplemental to this Trust Deed to effect such consequential amendments to these presents as the Trustee may require or as shall be requisite to comply with the requirements of any such stock exchange or securities market;
(ml) give notice to the Noteholders in accordance with Condition 13 (Notices) of any appointment, resignation or removal of any Agent, Calculation Agent or other Paying Agent (other than the appointment of the initial Agent, Calculation Agent and other Paying Agents) after having obtained the prior written approval of the Trustee thereto or any change of any Paying Agent's ’s specified office and (except as provided by the Agency Agreement or the Conditions) at least 30 days prior to such event taking effecteffect provided the Paying Agent and Trustee act in a way so as to allow the Issuer to comply with this covenant; PROVIDED ALWAYS THAT so long as any of the Notes remains outstanding in the case of the termination of the appointment of the Calculation Agent or so long as any of the Notes or Coupons remains liable to prescription in the case of the termination of the appointment of the Principal Paying Agent no such termination shall take effect until a new Principal Paying Agent or Calculation Agent (as the case may be) has been appointed on terms previously approved in writing by the Trustee;
(nm) send or procure to be sent to the Trustee, not less than seven 10 days prior to which any such notice is to be given, the form of every notice to be given to the Noteholders in accordance with Condition 13 (Notices) and obtain the prior written approval of the Trustee (not to be unreasonably withheld or delayed) to, and promptly give (or procure to be given) to the Trustee two copies of, the final form of every notice to be given to the Noteholders in accordance with Condition 13 (Notices) (such approval, unless so expressed, not to constitute approval for the purposes of Section 21 of the FSMA Financial Services and Markets Act 2000 of the United Kingdom (the FSMA) of a communication within the meaning of Section 21 of the FSMA);
(on) comply with and perform all its obligations under the Agency Agreement and use all reasonable its best endeavours to procure that the Agent and the other Paying Agents comply with and perform all their respective obligations thereunder and any notice given by the Trustee pursuant to Clause 2.3(a2.3(a)(i) and not make any amendment or modification to such Agreement without the prior written approval of the Trustee (not to be unreasonably withheld or delayed) and use all reasonable endeavours to make such amendments to such Agreement as the Trustee may require;
(po) in the case of the Issuer only, in order to enable the Trustee to ascertain the nominal principal amount of the Notes of each Series for the time being outstanding for any of the purposes referred to in the proviso to the definition of outstanding in Clause 1, deliver (or procure to be delivered) to the Trustee forthwith upon being so requested in writing by the Trustee a certificate in writing signed by two Directors of the Issuer or the relevant Guarantor (as appropriate) setting out the total number and aggregate nominal principal amount of the Notes of each Series issued which:
(i) up to and including the date of such certificate have been purchased by the Issuer, any Guarantor, the Guarantors or any other Subsidiary of the Issuer or any Guarantor and cancelled; and
(ii) are at the date of such certificate held by, for the benefit of, or on behalf of, the Issuer, any Guarantorthe Guarantors, any other Subsidiary of the Issuer or any GuarantorIssuer, any holding company of the Issuer or any Guarantor or any other Subsidiary of such holding company;
(qp) in the case of the Issuer only, procure its Subsidiaries to comply with all (if any) applicable provisions of Condition 6.9 7.4 (Redemption Purchases) and Purchases-PurchasesCondition 7.5 (Cancellations);
(rq) use all reasonable its best endeavours to procure that each of the Paying Agent: (i) Agents makes available for inspection or collection by Noteholders and Couponholders at its specified office; or (ii) sends by email (to Noteholders providing satisfactory proof of holding) office copies of these presents, the Agency Agreement and the then latest audited balance sheet annual consolidated financial statements of the Issuer and profit audited annual statutory financial statements of the Guarantors, to the extent such Guarantor is required by the laws of its country of incorporation to prepare financial statements;
(r) give to the Trustee (i) on the date hereof and loss account (consolidated if applicableii) at the same time as sending to it the certificates referred to in paragraph (f) above, a certificate by two Directors of the Issuer and two Directors of each Guarantor addressed to the Trustee (in the form set out in Schedule 5) listing those Subsidiaries of the Issuer or, as the case may be, such Guarantor which as at the date hereof, as at the certification date (as defined in paragraph (f) above) of the Grouprelevant certificate given under paragraph (f) above or, as the case may be, as at the first day on which the then latest annual accounts (consolidated or unconsolidated, as the case may be) of each such Subsidiary and the then latest audited annual consolidated accounts of the Group became available were Material Subsidiaries for the purposes of Condition 10;
(s) promptly provide give to the Trustee, as soon as reasonably practicable after the acquisition or disposal of any company which thereby becomes or ceases to be a Material Subsidiary or after any transfer is made to any Subsidiary of the Issuer or either Guarantor which thereby is to be treated (until it is demonstrated otherwise) as a Material Subsidiary, a certificate by two Directors of the Issuer or two Directors of the relevant Guarantor, as the case may be, addressed to the Trustee (with copies of all supplements and/or amendments and/or restatements of a form and content satisfactory to the Programme AgreementTrustee) to such effect;
(t) prior to making any modification or amendment or supplement to these presents, procure the delivery of (a) legal opinion(s) as to English and any other relevant law, addressed to the Trustee, dated the date of such modification or amendment or supplement, as the case may be, and in a form reasonably acceptable to the Trustee from legal advisers reasonably acceptable to the Trustee; and;
(u) in the case of the Issuer only, give notice to the Trustee of the proposed redemption of the Notes of any Series at least 5 business days in London prior to the giving of any notice of redemption in respect of such Notes pursuant to Condition 13 (Notices);13; and
(v) if payments in the event that the Notes do not carry an investment grade credit rating (BBB-/Baa3/BBB-, or equivalent, or better) from any Rating Agency, the Issuer and each Guarantor shall give to the Trustee (without the necessity for demand) promptly after the publication of each of their Consolidated Quarterly Financial Statements in respect of each of their respective financial quarters (other than the last quarter in each financial year) a certificate in the form set out in Schedule 6 signed by two Directors of the Issuer or the Guarantors of principal or interest in respect two Directors of the Notes or relative Coupons shall become subject generally to the taxing jurisdiction of any territory or any political sub-division or any authority therein or thereof having power to tax other than or in addition to the United Kingdom or any political sub-division or any authority therein or thereof having power to tax, immediately upon becoming aware thereof notify the Trustee of such event and relevant Guarantor (unless the Trustee otherwise agrees) enter forthwith into a trust deed supplemental to this Trust Deed, giving to the Trustee an undertaking or covenant in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 7 (Taxation) with the substitution for (or, as the case may be) confirming that none of the Issuer’s or such Guarantor’s Subsidiaries (not being a Guarantor) have incurred, created or permitted to subsist any Indebtedness in contravention of the addition to) the references therein to the United Kingdom or any political sub-division thereof or any authority therein or thereof having power to tax of references to that other or additional territory or any political sub-division thereof or any authority therein or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid; such trust deed also (where applicable) to modify restrictions set out in Condition 6.2 (4.2.
Appears in 1 contract
Samples: Trust Deed (Luxottica Group Spa)
COVENANTS BY THE ISSUER AND THE GUARANTORS. Each of So long as any Note is outstanding, the Issuer and each Guarantor severally covenants with the Trustee that, so long as any of the Notes remains outstanding (or, in the case of paragraphs (h), (i), (m), (n) and (o) so long as any of such Notes or the relative Coupons remains liable to prescription) it shallGuarantors will each:
(a) at all times carry on and conduct its affairs keep, and procure its Subsidiaries to carry on and conduct that each of their respective affairs in a proper and efficient manner;
Subsidiaries (bif any) give or procure to be given to the Trustee such opinionskeeps, certificates, information and evidence as it shall reasonably require and in such form as it shall reasonably require (including without limitation the procurement by the Issuer or the relevant Guarantor (as the case may be) of all such certificates called for by the Trustee pursuant to Clause 16(c)) for the purpose of the discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under these presents or by operation of law;
(c) cause to be prepared and certified by the Auditors in respect of each financial accounting period accounts in such form as will comply with all relevant legal and accounting requirements and all requirements for the time being of the relevant Stock Exchange;
(d) at all times keep and use all reasonable endeavours to procure its Subsidiaries keep proper books of account and, at any time after an Event of Default or Potential Event of Default or Potential Enforcement Event (as applicable) has occurred, or if the Trustee reasonably believes that such an event has occurred, so far as permitted by applicable law, allow, and allow procure that each such Subsidiary will allow, the Trustee and any person anyone appointed by the Trustee it to whom the Issuer, the relevant Guarantor or and/or the relevant Subsidiary (as the case may be) shall have has no reasonable objection free objection, access to such its books of account at all reasonable times during normal business hours, provided that the Trustee shall only use information so obtained in connection with the performance of the discharge or execution of its duties, trusts, powers, authorities and discretions under these presents or by operation of law;
(eb) notify the Trustee in writing immediately on becoming aware of the occurrence of any Event of Default, Potential Event of Default, Enforcement Event or Potential Enforcement Event (as applicable);
(c) so far as permitted by applicable law, give the Trustee such information as it reasonably requires to perform its functions;
(d) send to the Trustee (at the time of their issue, and, in addition to the case of annual financial statements in any copies to which it may be entitled as a holder event within 120 days after the end of each financial year and in the case of semi-annual financial statements in any securities event within 90 days after the end of the Issuer or any Guarantor) two first half of each financial year, three copies in English of every balance sheet, profit and loss account, reportreport or other notice, statement or circular and notice issued, or which legally or contractually should be issued, to the members or creditors (or any class of general meeting them) of the Issuer or such Guarantor generally in each case, which is public issued or sent their capacity as such;
(e) send to the Trustee within 14 days of its annual audited financial statements being made available to its shareholders (members and every other public document issued or sent to its shareholders together with also within 14 days of any request by the Trustee, a certificate of the foregoing), and every document issued or sent to creditors generally or to holders of securities other than its shareholders (including the Noteholders) generally as soon as practicable after the issue or publication thereof and in any event (Issuer in the case form of balance sheets and/or profit and loss accounts) within 180 days after Schedule 5 of this Trust Deed signed by any two Authorised Signatories that, having made all reasonable enquiries, to the end best of the relevant financial periodknowledge, information and belief of the Issuer as at a date (the Certification Date) not more than seven days before the date of the certificate no Event of Default, Potential Event of Default, Enforcement Event or Potential Enforcement Event (as applicable) or other breach of this Trust Deed had occurred since the Certification Date of the last such certificate or (if none) the date of this Trust Deed or, if such an event had occurred, giving details of it;
(f) forthwith upon the Issuer becoming aware thereof give notice in writing send to the Trustee the form of each notice to be given to Noteholders and, once given, two copies of each such notice, such notice to be in a form approved by the Trustee (such approval, unless so expressed, not to constitute approval for the purposes of section 21 of the occurrence FSMA of any Event such notice which is a communication within the meaning of Default or Potential Event section 21 of Default;the FSMA);
(g) give to the Trustee (i) within 14 days after demand so far as permitted by the Trustee therefor and (ii) (without the necessity for any such demand) promptly after the publication of its audited accounts in respect of each financial period commencing with the financial period ending 31 December, 2009 and in any event not later than 180 days after the end of each such financial period a certificate (in or substantially in the form set out in Schedule 4) signed by two Directors of the Issuer and two Directors of each Guarantor to the effect that to the best of the knowledge and belief of the Issuer and Guarantors, each having made appropriate investigations as at a date not more than ten days before delivering such certificate (the certification date) there did not exist and had not existed since the certification date of the previous certificate (or, in the case of the first such certificate, the date hereof) any Event of Default or any Potential Event of Default (or if such exists or existed specifying the same) and that during the period from and including the certification date of the last such certificate (or, in the case of the first such certificate, the date hereof) to and including the certification date of such certificate that each of the Issuer and each Guarantor has complied with all its obligations contained in these presents or (if such is not the case) specifying the respects in which it has not complied;
(h) to the extent not prohibited by applicable law, at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the sole opinion of the Trustee to give effect to these presentsthis Trust Deed;
(ih) at all times maintain an Agent and other Paying Agents in accordance with the Conditions;
(j) take all reasonable steps to procure that the Agent to notifies forthwith upon request by the Trustee forthwith in the event that it does not, on or before the due date for any payment in respect of the Notes or any of the relative Coupons, receive unconditionally pursuant give notice to the Agency Agreement payment Noteholders of the full amount in the requisite currency of the moneys payable on such due date on all such Notes or Coupons as the case may be;
(k) in the event of the any unconditional payment to the Agent or the Trustee of any sum due in respect of the Notes or any of them or any of the relative Coupons being made after the due date for payment thereof forthwith give or procure to be given notice to the relevant Noteholders in accordance with Condition 13 (Notices) that such payment has been madepayment;
(li) use its best all reasonable endeavours to maintain the listing on the relevant Stock Exchange of those of the Notes which are listed on the relevant official list of the United Kingdom Financial Conduct Authority in its capacity as competent authority under the Financial Services and Markets Act 2000 and the trading of such Notes on the Main Market of the London Stock Exchange orbut, if it is unable to do so so, having used its best endeavours such endeavours, or if the Trustee considers that the maintenance of such listings listing or trading is agreed by the Trustee to be unduly onerous and the Trustee is of the opinion satisfied that to do so would not be materially prejudicial to the interests of the NoteholdersNoteholders would not be thereby materially prejudiced, instead use its best all reasonable endeavours to obtain and maintain a quotation or listing of such Notes on such other stock exchange or exchanges or securities market or markets as the Issuer may (with the prior written approval of the Trustee) decide and also upon obtaining a quotation or listing of such Notes issued by it on such other stock exchange or exchanges or securities market or markets enter into a trust deed supplemental to this Trust Deed to effect such consequential amendments to these presents as the Trustee may require or as shall be requisite to comply with the requirements of any such stock exchange or securities market;
(m) give notice to the Noteholders in accordance with Condition 13 (Notices) of any appointment, resignation or removal of any Agent, Calculation Agent or other Paying Agent (other than the appointment of the initial Agent, Calculation Agent and other Paying Agents) after having obtained the prior written approval of the Trustee thereto or any change of any Paying Agent's specified office and (except as provided by the Agency Agreement or the Conditions) at least 30 days prior to such event taking effect; PROVIDED ALWAYS THAT so long as any of the Notes remains outstanding in on another stock exchange and the case of the termination of the appointment of the Calculation Agent or so long as any admission to trading of the Notes or Coupons remains liable to prescription on another market, in the each case of the termination of the appointment of the Agent no such termination shall take effect until a new Agent or Calculation Agent (as the case may be) has been appointed on terms previously approved in writing by the Trustee;
(nj) give at least 30 days' prior notice to the Noteholders of any future appointment, resignation or removal of a Paying Agent or of any change by a Paying Agent of its specified office and not make any such appointment or removal without the Trustee's written approval, such approval not to be unreasonably withheld or delayed;
(k) send to the Trustee, not less than seven days prior to which any such notice is to be given, the form of every notice to be given to Noteholders in accordance with Condition 13 (Notices) and obtain the prior written approval of the Trustee to and promptly give to the Trustee two copies of, the final form of every notice to be given to the Noteholders in accordance with Condition 13 (Notices) (such approval, unless so expressed, not to constitute approval for the purposes of Section 21 of the FSMA of a communication within the meaning of Section 21 of the FSMA);
(o) comply with and perform all its obligations under the Agency Agreement and use all reasonable endeavours to procure that the Agent and the other Paying Agents comply with and perform all their respective obligations thereunder and any notice given by the Trustee pursuant to Clause 2.3(a) and not make any amendment or modification to such Agreement without the prior written approval of the Trustee and use all reasonable endeavours to make such amendments to such Agreement as the Trustee may require;
(p) in order to enable the Trustee to ascertain the nominal amount of the Notes of each Series for the time being outstanding for any of the purposes referred to in the proviso to the definition of outstanding in Clause 1, deliver to the Trustee forthwith upon soon as practicable after being so requested in writing by the Trustee a certificate in writing signed by two Directors of the Issuer or or, as the relevant Guarantor (as appropriate) setting out the total number and aggregate nominal amount of the Notes of each Series issued which:
(i) up to and including the date of such certificate have been purchased by the Issuercase may be, any Guarantor, or Guarantor signed by any Subsidiary two of its Authorised Signatories stating the Issuer or any Guarantor and cancelled; and
(ii) are number of Notes held at the date of such certificate held by, for the benefit of, by or on behalf ofof the Issuer or, as the Issuercase may be, any Guarantorsuch Guarantor or their respective Subsidiaries;
(l) give to the Trustee at the same time as sending the certificate referred to in Clause 16(e) or within 28 days of a request by the Trustee, any Subsidiary a certificate signed by two Authorised Signatories of the Issuer listing those Subsidiaries of the Issuer which as at the last day of the last financial year of the Issuer or as at the date specified in such request were Material Subsidiaries and the Trustee shall have no obligation to verify any Guarantor, any holding company of calculations or assessments made by the Issuer or in providing such certificate. Such certificate shall for all purposes be binding on the Trustee who shall rely on such certificate without liability to any Guarantor or any other Subsidiary of such holding company;person; and
(q) procure its Subsidiaries to comply with all applicable provisions of Condition 6.9 (Redemption and Purchases-Purchases);
(r) use all reasonable endeavours to procure that each Paying Agent: (i) makes available for inspection or collection by Noteholders and Couponholders at its specified office; or (ii) sends by email (to Noteholders providing satisfactory proof of holding) copies of these presents, the Agency Agreement and the then latest audited balance sheet and profit and loss account (consolidated if applicable) of the Group;
(s) promptly provide the Trustee with copies of all supplements and/or amendments and/or restatements of the Programme Agreement;
(tm) prior to making any modification or amendment or supplement to these presentsthis Trust Deed or the Conditions, procure (at the request of the Trustee) the delivery of (a) a legal opinion(s) as to the validity and enforceability under English and any other law of the relevant lawmodification or amendment or supplement, addressed to the Trustee, dated the date of such modification or amendment or supplement, as the case may be, and in a form reasonably acceptable to the Trustee from legal advisers reasonably acceptable to the Trustee; and
(u) give notice to the Trustee of the proposed redemption of the Notes of any Series at least 5 business days in London prior to the giving of any notice of redemption in respect of such Notes pursuant to Condition 13 (Notices);
(v) if payments by the Issuer or the Guarantors of principal or interest in respect of the Notes or relative Coupons shall become subject generally to the taxing jurisdiction of any territory or any political sub-division or any authority therein or thereof having power to tax other than or in addition to the United Kingdom or any political sub-division or any authority therein or thereof having power to tax, immediately upon becoming aware thereof notify the Trustee of such event and (unless the Trustee otherwise agrees) enter forthwith into a trust deed supplemental to this Trust Deed, giving to the Trustee an undertaking or covenant in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 7 (Taxation) with the substitution for (or, as the case may be, the addition to) the references therein to the United Kingdom or any political sub-division thereof or any authority therein or thereof having power to tax of references to that other or additional territory or any political sub-division thereof or any authority therein or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid; such trust deed also (where applicable) to modify Condition 6.2 (.
Appears in 1 contract
Samples: Trust Deed
COVENANTS BY THE ISSUER AND THE GUARANTORS. Each of the Issuer and each Guarantor severally covenants with the Trustee that, so So long as any of the Notes remains outstanding (or, in the case of paragraphs (h), (i), (m), (n), (o) and (o) q), so long as any of such the Notes or the relative Coupons remains liable to prescription) each of the Issuer and the Guarantors severally covenants with the Trustee that it shall:
(a) at all times carry on and conduct its affairs and procure its Subsidiaries to carry on and conduct their respective affairs in a proper and efficient manner;
(b) give or procure to be given to the Trustee such opinions, certificates, information and evidence as it shall reasonably require and in such form as it shall reasonably require (including without limitation the procurement by the Issuer or the relevant Guarantor (as the case may be) of all such certificates called for by the Trustee pursuant to Clause subclause 16(c)) for the purpose of the discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under these presents or by operation of law;
(c) cause to be prepared and certified by the Auditors in respect of each financial accounting period of the Issuer accounts of the Issuer in such form as will comply with all relevant legal and accounting requirements and all requirements for the time being of the relevant London Stock Exchange;
(d) at all times keep and use all reasonable endeavours to procure its Subsidiaries to keep proper books of account and allow and procure its Subsidiaries to allow the Trustee and any person appointed by the Trustee to whom the Issuer, the relevant Guarantor or the relevant Subsidiary (as the case may be) shall have no reasonable objection free access to such books of account at all reasonable times during normal business hours, provided that the Trustee shall only use information so obtained in connection with the performance of the discharge or execution of its duties, trusts, powers, authorities and discretions under these presents or by operation of law;
(e) send to the Trustee (in addition to any copies to which it may be entitled as a holder of any securities of the Issuer or any Guarantorthe Guarantors) two copies in English of every balance sheet, profit and loss account, report, circular and notice of general meeting in each case, which is public issued or sent to its shareholders (and every other public document issued or sent by the Issuer to its shareholders together with any of the foregoing), and every document issued or sent to creditors generally or to holders of securities of the Issuer or the Guarantors other than its their shareholders (including the Noteholders) generally as soon as practicable after the issue or publication thereof and in any event (in the case of balance sheets and/or profit and loss accounts) within 180 days after the end of the relevant financial periodthereof;
(f) forthwith upon the Issuer becoming aware thereof give notice in writing to the Trustee of the coming into existence of any security interest which would require any security to be given to the Notes pursuant to Condition 4 or of the occurrence of any Event of Default or Default, any Potential Event of Default;Default, any Put Event, any Change of Control or any Relevant Rating Downgrade;
(g) give to the Trustee (i) within 14 seven days after demand by the Trustee therefor and (ii) (without the necessity for any such demand) promptly after the publication of its audited accounts in respect of each financial period commencing with the financial period ending 31 December, 2009 27 December 2016 and in any event not later than 180 days after the end of each such financial period a certificate (in or substantially in the form set out in Schedule 4) 4 signed by two Directors Directors, or one Director and the Company Secretary, of the Issuer and two Directors of each Guarantor to the effect that that, to the best of the knowledge their knowledge, belief and belief of the Issuer and Guarantors, each information (having made appropriate investigations all reasonable enquiries), as at a date not more than ten seven days before delivering such certificate (the certification date) there did not exist and had not existed and had not happened since the certification date of the previous certificate (or, or in the case of the first such certificate, certificate the date hereof) any Event of Default or Default, any Potential Event of Default Default, any Put Event, any Change of Control or any Relevant Rating Downgrade (or if such exists or existed or had happened specifying the same) and that during the period from and including the certification date of the last such certificate (or, or in the case of the first such certificate, certificate the date hereof) to and including the certification date of such certificate that each of the Issuer and each Guarantor the Guarantors has complied with all its obligations contained in these presents or (if such is not the case) specifying the respects in which it has not complied;
(h) to the extent not prohibited by law, at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the sole opinion of the Trustee to give effect to these presents;
(i) at all times maintain an Agent and other Paying Agents in accordance with the Conditions;
(j) take all reasonable steps to procure that the Principal Paying Agent to notifies notify the Trustee forthwith in the event that it the Principal Paying Agent does not, on or before the due date for any payment in respect of the Notes or any of them or any of the relative Coupons, receive unconditionally pursuant to the Agency Agreement payment of the full amount in the requisite currency of the moneys payable on such due date on all such Notes or Coupons as the case may be;
(k) in the event of the unconditional payment to the Principal Paying Agent or the Trustee of any sum due in respect of the Notes or any of them or any of the relative Coupons being made after the due date for payment thereof forthwith give or procure to be given notice to the relevant Noteholders in accordance with Condition 13 (Notices) that such payment has been made;
(l) use its best reasonable endeavours to maintain the listing on the relevant Stock Exchange of those of the Notes which are listed on the relevant London Stock Exchange or, if it is unable to do so having used its best reasonable endeavours or if the Trustee considers that the maintenance of such listings listing is unduly onerous and the Trustee is of the opinion that to do so would not be materially prejudicial to the interests of the Noteholders, use its best reasonable endeavours to obtain and maintain a quotation or listing of such the Notes on such other stock exchange or exchanges or securities market or markets as the Issuer may (with the prior written approval of the Trustee) decide and shall also upon obtaining a quotation or listing of such the Notes issued by it on such other stock exchange or exchanges or securities market or markets enter into a trust deed supplemental to this Trust Deed to effect such consequential amendments to these presents as the Trustee may require or as shall be requisite to comply with the requirements of any such stock exchange or securities market;
(m) give notice to the Noteholders in accordance with Condition 13 (Notices) of any appointment, resignation or removal of any Agent, Calculation Agent or other Paying Agent (other than the appointment of the initial Agent, Calculation Agent and other Paying Agents) after having obtained the prior written approval of the Trustee thereto or any change of any Paying Agent's ’s specified office and (except as provided by the Agency Agreement or the Conditions) at least 30 days prior to such event taking effect; PROVIDED ALWAYS THAT so long as any of the Notes remains outstanding in the case of the termination of the appointment of the Calculation Agent or so long as any of the Notes or Coupons remains liable to prescription in the case of the termination of the appointment of the Principal Paying Agent no such termination shall take effect until a new Principal Paying Agent or Calculation Agent (as the case may be) has been appointed on terms previously approved in writing by the Trustee;
(n) send to the Trustee, not less than seven 14 days prior to which any such notice is to be given, the form of every notice to be given to the Noteholders in accordance with Condition 13 (Notices) and obtain the prior written approval of the Trustee to to, and promptly give to the Trustee two copies of, the final form of every notice to be given to the Noteholders in accordance with Condition 13 (Notices) (such approval, unless so expressed, not to constitute approval for the purposes of Section 21 of the FSMA Financial Services and Markets Xxx 0000 of the United Kingdom (the FSMA) of a communication within the meaning of Section 21 of the FSMA);
(o) comply with and perform all its obligations under the Agency Agreement and use all reasonable endeavours to procure that the Agent and the other Paying Agents comply with and perform all their respective obligations thereunder and any notice given by the Trustee pursuant to Clause 2.3(aclause 2.3(a)(i) and not make any amendment or modification to such Agreement without the prior written approval of the Trustee and use all reasonable endeavours to make such amendments to such Agreement as the Trustee may require;
(p) in order to enable the Trustee to ascertain the nominal principal amount of the Notes of each Series for the time being outstanding for any of the purposes referred to in the proviso to the definition of outstanding in Clause clause 1, deliver to the Trustee forthwith upon being so requested in writing by the Trustee a certificate in writing signed by two Directors Directors, or one Director and the Company Secretary, of the Issuer or the relevant Guarantor (as appropriate) setting out the total number and aggregate nominal principal amount of the Notes of each Series issued which:
(i) up to and including the date of such certificate have been purchased by the Issuer, any Guarantor, Guarantor or any other Subsidiary of the Issuer or any Guarantor and cancelled; and
(ii) are at the date of such certificate held by, for the benefit of, or on behalf of, the Issuer, any Guarantor, any other Subsidiary of the Issuer or any GuarantorIssuer, any holding company of the Issuer or any Guarantor or any other Subsidiary of such holding company;
(q) procure its Subsidiaries to comply with all (if any) applicable provisions of Condition 6.9 (Redemption and Purchases-PurchasesConditions 7(f);
(r) use all reasonable endeavours to procure that each of the Paying Agent: (i) Agents makes available for inspection or collection by Noteholders and Couponholders at its specified office; or (ii) sends by email (to Noteholders providing satisfactory proof of holding) office copies of these presents, the Agency Agreement and the then latest audited balance sheet sheets and profit and loss account accounts (consolidated if applicable) of the GroupIssuer;
(s) promptly provide give to the Trustee with copies of all supplements and/or amendments and/or restatements (i) on the date hereof and (ii) at the same time as sending to it the certificates referred to in paragraph (g) above, a certificate by two Directors, or one Director and the Company Secretary, of the Programme AgreementIssuer addressed to the Trustee (with a form and content satisfactory to the Trustee) listing those Subsidiaries of the Issuer which as at the date hereof, as at the certification date (as defined in paragraph (g) above) of the relevant certificate given under paragraph (g) above or, as the case may be, as at the first day on which the then latest audited consolidated accounts of the Issuer became available were Principal Subsidiaries for the purposes of Condition 10;
(t) give to the Trustee, as soon as reasonably practicable after the acquisition or disposal of any company which thereby becomes or ceases to be a Principal Subsidiary or after any transfer is made to any Subsidiary of the Issuer which thereby becomes a Principal Subsidiary, a certificate by two Directors, or one Director and the Company Secretary, of the Issuer addressed to the Trustee (with a form and content satisfactory to the Trustee) to such effect;
(u) prior to making any modification or amendment or supplement to these presents, procure the delivery of (a) legal opinion(s) as to English and any other relevant law, addressed to the Trustee, dated the date of such modification or amendment or supplement, as the case may be, and in a form reasonably acceptable to the Trustee from legal advisers reasonably acceptable to the Trustee; and
(uv) give notice to the Trustee of the proposed redemption of the Notes of any Series at least 5 business days in London prior to the giving of any notice of redemption in respect of such Notes pursuant to Condition 13 (Notices);
(v) if payments by the Issuer or the Guarantors of principal or interest in respect of the Notes or relative Coupons shall become subject generally to the taxing jurisdiction of any territory or any political sub-division or any authority therein or thereof having power to tax other than or in addition to the United Kingdom or any political sub-division or any authority therein or thereof having power to tax, immediately upon becoming aware thereof notify the Trustee of such event and (unless the Trustee otherwise agrees) enter forthwith into a trust deed supplemental to this Trust Deed, giving to the Trustee an undertaking or covenant in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 7 (Taxation) with the substitution for (or, as the case may be, the addition to) the references therein to the United Kingdom or any political sub-division thereof or any authority therein or thereof having power to tax of references to that other or additional territory or any political sub-division thereof or any authority therein or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid; such trust deed also (where applicable) to modify Condition 6.2 (13.
Appears in 1 contract
COVENANTS BY THE ISSUER AND THE GUARANTORS. Each of the Issuer and each Guarantor severally covenants with the Trustee that, so So long as any of the Notes remains outstanding (or, in the case of paragraphs (g), (h), (il), (m), (n) and (o) p), so long as any of such the Notes or the relative Coupons remains liable to prescription) each of the Issuer and (save where indicated otherwise) the Guarantors severally covenants with the Trustee that it shall:
(a) at all times carry on and conduct its affairs and procure its Subsidiaries to carry on and conduct their respective affairs in a proper and efficient manner;
(b) give or procure to be given to the Trustee such opinions, certificates, information and evidence as it shall reasonably require and in such form as it shall reasonably require (including without limitation the procurement by the Issuer or the relevant Guarantor Guarantors (as the case may be) of all such certificates called for by the Trustee pursuant to Clause 16(csubclause 16(b)) for the purpose of the discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under these presents or by operation of law;
(cb) cause to be prepared and if so required under the laws of its jurisdiction of incorporation certified by its independent auditors for the Auditors time being in respect of each financial accounting period accounts in such form as will comply with all relevant legal and accounting requirements and all requirements for the time being of the relevant Luxembourg Stock ExchangeExchange and, in the case of the Issuer only, Consolidated Financial Statements and Consolidated Quarterly Financial Statements containing the Consolidated Equity of the Group, and save that this sub-clause (b) shall only apply to each Guarantor to the extent that it is required by the laws of its country of incorporation to prepare accounts;
(dc) at all times keep and use all reasonable endeavours to procure its Subsidiaries keep proper books of account and allow the Trustee and any person appointed by the Trustee to whom the Issuer, the relevant Guarantor or the relevant Subsidiary (as the case may be) Guarantors shall have no reasonable objection free access to such books of account at all reasonable times during normal business hours, provided that the Trustee shall only use information so obtained in connection with the performance of the discharge or execution of its duties, trusts, powers, authorities and discretions under these presents or by operation of law;
(ed) send to the Trustee (in addition to any copies to which it may be entitled as a holder of any securities of the Issuer or the Guarantors) (i) in the case of the Issuer, a copy in English of its Consolidated Financial Statements in respect of each financial year commencing with the financial year ended 31 December 2012 promptly following its publication and in any Guarantor) two copies event not later than 180 days after the end of such financial year; and a copy in English of every balance sheet, profit and loss account, report, report circular and notice of general meeting in each case, which is public issued or sent to its shareholders (and every other public document issued or sent to its shareholders together with any of the foregoing), foregoing and every document issued or sent to creditors generally or to the holders of securities securities, other than its the shareholders (including the Noteholders) generally ), in each case as soon as practicable after the issue or publication thereof; and (ii) in the case of each Guarantor, a copy in its original language (accompanied by an English language translation) of its statutory financial statements in respect of each financial year commencing with the financial year ended 31 December 2012, promptly following the publication thereof and in any event (in the case of balance sheets and/or profit and loss accounts) within not later than 180 days after the end of such financial year, to the relevant extent such Guarantor is required by the laws of its country of incorporation to prepare financial periodstatements;
(fe) forthwith upon the Issuer becoming aware thereof give notice in writing to the Trustee upon becoming aware of the coming into existence of any security interest which would require any security to be given to the Notes pursuant to Condition 4.1 or of the occurrence of any Event of Default or any Potential Event of Default;Default or Change of Control or Change of Control Put Event;
(gf) in the case of the Issuer only, give to the Trustee (i) within 14 seven days after demand by the Trustee therefor and (ii) (without the necessity for any such demand) promptly after the publication of its audited accounts Consolidated Financial Statements in respect of each financial period year commencing with the financial period ending year ended 31 December, 2009 December 2012 and in any event not later than 180 days after the end of each such financial period year a certificate (in or substantially in the form set out in Schedule 4) 4 signed by two Directors of the Issuer and two Directors of each Guarantor to the effect that to the best of the knowledge and belief of the Issuer and Guarantorsthat, each having made appropriate investigations (a) as at a date not more than ten seven days before delivering such certificate (the certification date) there did not exist and had not existed since the certification date of the previous certificate (or, or in the case of the first such certificate, certificate the date hereof) any Event of Default or any Potential Event of Default or any Change of Control or any Change of Control Put Event (or if such exists or existed specifying the same) and (b) that during the period from and including the certification date of the last such certificate (or, or in the case of the first such certificate, certificate the date hereof) to and including the certification date of such certificate that each of the Issuer and each Guarantor the Guarantors has complied with all its obligations contained in these presents or (if such is not the case) specifying the respects in which it has not complied;
(hg) to the extent not prohibited so far as is permitted by law, at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the sole opinion of the Trustee to give effect to these presents;
(ih) at all times maintain an Agent and other Paying Agents in accordance with the Conditions;
(ji) take all reasonable steps use its best endeavours to procure that the Principal Paying Agent to notifies notify the Trustee forthwith in the event that it the Principal Paying Agent does not, on or before the due date for any payment in respect of the Notes or any of them or any of the relative Coupons, receive unconditionally pursuant to the Agency Agreement payment of the full amount in the requisite currency of the moneys payable on such due date on all such Notes or Coupons as the case may be;
(kj) in the event of the unconditional payment to the Principal Paying Agent or the Trustee of any sum due in respect of the Notes or any of them or any of the relative Coupons being made after the due date for payment thereof forthwith give or procure to be given notice to the relevant Noteholders in accordance with Condition 13 (Notices) that such payment has been made;
(lk) use its best endeavours to maintain the listing on the relevant Stock Exchange of those of the Notes which are listed on the relevant Luxembourg Stock Exchange or, if it is unable to do so having used its best endeavours or if it is agreed by the Trustee considers that the maintenance of such listings listing is unduly onerous or impractical and the Trustee is of the opinion that to do so would not be materially prejudicial to the interests of the Noteholders, use its best endeavours to obtain and maintain a quotation or listing of such the Notes on such other stock exchange or exchanges or securities market or markets as the Issuer may (with the prior written approval of the Trustee) decide and shall also upon obtaining a quotation or listing of such the Notes issued by it on such other stock exchange or exchanges or securities market or markets enter into a trust deed supplemental to this Trust Deed to effect such consequential amendments to these presents as the Trustee may require or as shall be requisite to comply with the requirements of any such stock exchange or securities market;
(ml) give notice to the Noteholders in accordance with Condition 13 (Notices) of any appointment, resignation or removal of any Agent, Calculation Agent or other Paying Agent (other than the appointment of the initial Agent, Calculation Agent and other Paying Agents) after having obtained the prior written approval of the Trustee thereto or any change of any Paying Agent's ’s specified office and (except as provided by the Agency Agreement or the Conditions) at least 30 days prior to such event taking effecteffect provided the Paying Agent and Trustee act in a way so as to allow the Issuer to comply with this covenant; PROVIDED ALWAYS THAT so long as any of the Notes remains outstanding in the case of the termination of the appointment of the Calculation Agent or so long as any of the Notes or Coupons remains liable to prescription in the case of the termination of the appointment of the Principal Paying Agent no such termination shall take effect until a new Principal Paying Agent or Calculation Agent (as the case may be) has been appointed on terms previously approved in writing by the Trustee;
(nm) send or procure to be sent to the Trustee, not less than seven 10 days prior to which any such notice is to be given, the form of every notice to be given to the Noteholders in accordance with Condition 13 (Notices) and obtain the prior written approval of the Trustee (not to be unreasonably withheld or delayed) to, and promptly give (or procure to be given) to the Trustee two copies of, the final form of every notice to be given to the Noteholders in accordance with Condition 13 (Notices) (such approval, unless so expressed, not to constitute approval for the purposes of Section 21 of the FSMA Financial Services and Markets Act 2000 of the United Kingdom (the FSMA) of a communication within the meaning of Section 21 of the FSMA);
(on) comply with and perform all its obligations under the Agency Agreement and use all reasonable its best endeavours to procure that the Agent and the other Paying Agents comply with and perform all their respective obligations thereunder and any notice given by the Trustee pursuant to Clause 2.3(a2.3(a)(i) and not make any amendment or modification to such Agreement without the prior written approval of the Trustee (not to be unreasonably withheld or delayed) and use all reasonable endeavours to make such amendments to such Agreement as the Trustee may require;
(po) in the case of the Issuer only, in order to enable the Trustee to ascertain the nominal principal amount of the Notes of each Series for the time being outstanding for any of the purposes referred to in the proviso to the definition of outstanding in Clause 1, deliver (or procure to be delivered) to the Trustee forthwith upon being so requested in writing by the Trustee a certificate in writing signed by two Directors of the Issuer or the relevant Guarantor (as appropriate) setting out the total number and aggregate nominal principal amount of the Notes of each Series issued which:
(i) up to and including the date of such certificate have been purchased by the Issuer, any Guarantor, the Guarantors or any other Subsidiary of the Issuer or any Guarantor and cancelled; and
(ii) are at the date of such certificate held by, for the benefit of, or on behalf of, the Issuer, any Guarantorthe Guarantors, any other Subsidiary of the Issuer or any GuarantorIssuer, any holding company of the Issuer or any Guarantor or any other Subsidiary of such holding company;
(qp) in the case of the Issuer only, procure its Subsidiaries to comply with all (if any) applicable provisions of Condition 6.9 7.4 (Redemption Purchases) and Purchases-PurchasesCondition 7.5 (Cancellations);
(rq) use all reasonable its best endeavours to procure that each of the Paying Agent: (i) Agents makes available for inspection or collection by Noteholders and Couponholders at its specified office; or (ii) sends by email (to Noteholders providing satisfactory proof of holding) office copies of these presents, the Agency Agreement and the then latest audited balance sheet annual consolidated financial statements of the Issuer and profit audited annual statutory financial statements of the Guarantors, to the extent such Guarantor is required by the laws of its country of incorporation to prepare financial statements;
(r) give to the Trustee (i) on the date hereof and loss account (consolidated if applicableii) at the same time as sending to it the certificates referred to in paragraph (f) above, a certificate by two Directors of the Issuer and two Directors of each Guarantor addressed to the Trustee (in the form set out in Schedule 5) listing those Subsidiaries of the Issuer or, as the case may be, such Guarantor which as at the date hereof, as at the certification date (as defined in paragraph (f) above) of the Grouprelevant certificate given under paragraph (f) above or, as the case may be, as at the first day on which the then latest annual accounts (consolidated or unconsolidated, as the case may be) of each such Subsidiary and the then latest audited annual consolidated accounts of the Group became available were Material Subsidiaries for the purposes of Condition 10;
(s) promptly provide give to the Trustee, as soon as reasonably practicable after the acquisition or disposal of any company which thereby becomes or ceases to be a Material Subsidiary or after any transfer is made to any Subsidiary of the Issuer or either Guarantor which thereby is to be treated (until it is demonstrated otherwise) as a Material Subsidiary, a certificate by two Directors of the Issuer or two Directors of the relevant Guarantor, as the case may be, addressed to the Trustee (with copies of all supplements and/or amendments and/or restatements of a form and content satisfactory to the Programme AgreementTrustee) to such effect;
(t) prior to making any modification or amendment or supplement to these presents, procure the delivery of (a) legal opinion(s) as to English and any other relevant law, addressed to the Trustee, dated the date of such modification or amendment or supplement, as the case may be, and in a form reasonably acceptable to the Trustee from legal advisers reasonably acceptable to the Trustee; and;
(u) in the case of the Issuer only, give notice to the Trustee of the proposed redemption of the Notes of any Series at least 5 business days in London prior to the giving of any notice of redemption in respect of such Notes pursuant to Condition 13 (Notices);13; and
(v) if payments in the event that the Notes do not carry an investment grade credit rating (BBB-/Baa3/BBB-, or equivalent, or better) from any Rating Agency, the Issuer and each Guarantor shall give to the Trustee (without the necessity for demand) promptly after the publication of each of their Consolidated Quarterly Financial Statements in respect of each of their respective financial quarters (other than the last quarter in each financial year) a certificate in the form set out in Schedule 6 signed by two Directors of the Issuer or the Guarantors of principal or interest in respect two Directors of the Notes or relative Coupons shall become subject generally to the taxing jurisdiction of any territory or any political sub-division or any authority therein or thereof having power to tax other than or in addition to the United Kingdom or any political sub-division or any authority therein or thereof having power to tax, immediately upon becoming aware thereof notify the Trustee of such event and relevant Guarantor (unless the Trustee otherwise agrees) enter forthwith into a trust deed supplemental to this Trust Deed, giving to the Trustee an undertaking or covenant in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 7 (Taxation) with the substitution for (or, as the case may be) confirming that none of the Issuer’s or such Guarantor’s Subsidiaries (not being a Guarantor) have incurred, created or permitted to subsist any Indebtedness in contravention of the addition to) the references therein to the United Kingdom or any political sub-division thereof or any authority therein or thereof having power to tax of references to that other or additional territory or any political sub-division thereof or any authority therein or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid; such trust deed also (where applicable) to modify restrictions set out in Condition 6.2 (4.2.
Appears in 1 contract
Samples: Trust Deed (Luxottica Group Spa)
COVENANTS BY THE ISSUER AND THE GUARANTORS. Each of the Issuer and each Guarantor severally covenants with the Trustee that, so long as any of the Notes remains outstanding (or, in the case of paragraphs (h), (i), (m), (n) and (o) so long as any of such Notes or the relative Coupons remains liable to prescription) it shall:
(a) at all times carry on and conduct its affairs and procure its Subsidiaries to carry on and conduct their respective affairs in a proper and efficient manner;
(b) give or procure to be given to the Trustee such opinions, certificates, information and evidence as it shall reasonably require and in such form as it shall reasonably require (including without limitation the procurement by the Issuer or the relevant Guarantor (as the case may be) of all such certificates called for by the Trustee pursuant to Clause 16(c)) for the purpose of the discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under these presents or by operation of law;
(c) cause to be prepared and certified by the Auditors in respect of each financial accounting period accounts in such form as will comply with all relevant legal and accounting requirements and all requirements for the time being of the relevant Stock Exchange;
(d) at all times keep and use all reasonable endeavours to procure its Subsidiaries keep proper books of account and allow the Trustee and any person appointed by the Trustee to whom the Issuer, the relevant Guarantor or the relevant Subsidiary (as the case may be) shall have no reasonable objection free access to such books of account at all reasonable times during normal business hours, provided that the Trustee shall only use information so obtained in connection with the performance of the discharge or execution of its duties, trusts, powers, authorities and discretions under these presents or by operation of law;
(e) send to the Trustee (in addition to any copies to which it may be entitled as a holder of any securities of the Issuer or any Guarantor) two copies in English of every balance sheet, profit and loss account, report, circular and notice of general meeting in each case, which is public issued or sent to its shareholders (and every other public document issued or sent to its shareholders together with any of the foregoing), and every document issued or sent to creditors generally or to holders of securities other than its shareholders (including the Noteholders) generally as soon as practicable after the issue or publication thereof and in any event (in the case of balance sheets and/or profit and loss accounts) within 180 days after the end of the relevant financial period;
(f) forthwith upon the Issuer becoming aware thereof give notice in writing to the Trustee of the occurrence of any Event of Default or Potential Event of Default;Default;
(g) give to the Trustee (i) within 14 days after demand by the Trustee therefor and (ii) (without the necessity for any such demand) promptly after the publication of its audited accounts in respect of each financial period commencing with the financial period ending 31 December, 2009 and in any event not later than 180 days after the end of each such financial period a certificate (in or substantially in the form set out in Schedule 4) signed by two Directors of the Issuer and two Directors of each Guarantor to the effect that to the best of the knowledge and belief of the Issuer and Guarantors, each having made appropriate investigations as at a date not more than ten days before delivering such certificate (the certification date) there did not exist and had not existed since the certification date of the previous certificate (or, in the case of the first such certificate, the date hereof) any Event of Default or any Potential Event of Default (or if such exists or existed specifying the same) and that during the period from and including the certification date of the last such certificate (or, in the case of the first such certificate, the date hereof) to and including the certification date of such certificate that each of the Issuer and each Guarantor has complied with all its obligations contained in these presents or (if such is not the case) specifying the respects in which it has not complied;
(h) to the extent not prohibited by law, at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the sole opinion of the Trustee to give effect to these presents;
(i) at all times maintain an Agent and other Paying Agents in accordance with the Conditions;
(j) take all reasonable steps to procure that the Agent to notifies the Trustee forthwith in the event that it does not, on or before the due date for any payment in respect of the Notes or any of the relative Coupons, receive unconditionally pursuant to the Agency Agreement payment of the full amount in the requisite currency of the moneys payable on such due date on all such Notes or Coupons as the case may be;
(k) in the event of the unconditional payment to the Agent or the Trustee of any sum due in respect of the Notes or any of them or any of the relative Coupons being made after the due date for payment thereof forthwith give or procure to be given notice to the relevant Noteholders in accordance with Condition 13 14 (Notices) that such payment has been made;
(l) use its best endeavours to maintain the listing on the relevant Stock Exchange of those of the Notes which are listed on the relevant Stock Exchange or, if it is unable to do so having used its best endeavours or if the Trustee considers that the maintenance of such listings is unduly onerous and the Trustee is of the opinion that to do so would not be materially prejudicial to the interests of the Noteholders, use its best endeavours to obtain and maintain a quotation or listing of such Notes on such other stock exchange or exchanges or securities market or markets as the Issuer may (with the prior written approval of the Trustee) decide and also upon obtaining a quotation or listing of such Notes issued by it on such other stock exchange or exchanges or securities market or markets enter into a trust deed supplemental to this Trust Deed to effect such consequential amendments to these presents as the Trustee may require or as shall be requisite to comply with the requirements of any such stock exchange or securities market;
(m) give notice to the Noteholders in accordance with Condition 13 14 (Notices) of any appointment, resignation or removal of any Agent, Calculation Agent or other Paying Agent (other than the appointment of the initial Agent, Calculation Agent and other Paying Agents) after having obtained the prior written approval of the Trustee thereto or any change of any Paying Agent's specified office and (except as provided by the Agency Agreement or the Conditions) at least 30 days prior to such event taking effect; PROVIDED ALWAYS THAT so long as any of the Notes remains outstanding in the case of the termination of the appointment of the Calculation Agent or so long as any of the Notes or Coupons remains liable to prescription in the case of the termination of the appointment of the Agent no such termination shall take effect until a new Agent or Calculation Agent (as the case may be) has been appointed on terms previously approved in writing by the Trustee;
(n) send to the Trustee, not less than seven days prior to which any such notice is to be given, the form of every notice to be given to Noteholders in accordance with Condition 13 14 (Notices) and obtain the prior written approval of the Trustee to and promptly give to the Trustee two copies of, the final form of every notice to be given to the Noteholders in accordance with Condition 13 14 (Notices) (such approval, unless so expressed, not to constitute approval for the purposes of Section 21 of the FSMA of a communication within the meaning of Section 21 of the FSMA);
(o) comply with and perform all its obligations under the Agency Agreement and use all reasonable endeavours to procure that the Agent and the other Paying Agents comply with and perform all their respective obligations thereunder and any notice given by the Trustee pursuant to Clause 2.3(a) and not make any amendment or modification to such Agreement without the prior written approval of the Trustee and use all reasonable endeavours to make such amendments to such Agreement as the Trustee may require;
(p) in order to enable the Trustee to ascertain the nominal amount of the Notes of each Series for the time being outstanding for any of the purposes referred to in the proviso to the definition of outstanding in Clause 1, deliver to the Trustee forthwith upon being so requested in writing by the Trustee a certificate in writing signed by two Directors of the Issuer or the relevant Guarantor (as appropriate) setting out the total number and aggregate nominal amount of the Notes of each Series issued which:
(i) up to and including the date of such certificate have been purchased by the Issuer, any Guarantor, or any Subsidiary of the Issuer or any Guarantor and cancelled; and
(ii) are at the date of such certificate held by, for the benefit of, or on behalf of, the Issuer, any Guarantor, any Subsidiary of the Issuer or any Guarantor, any holding company of the Issuer or any Guarantor or any other Subsidiary of such holding company;
(q) procure its Subsidiaries to comply with all applicable provisions of Condition 6.9 7.9 (Redemption and Purchases-Purchases);
(r) use all reasonable endeavours to procure that each Paying Agent: (i) Agent makes available for inspection or collection by Noteholders and Couponholders at its specified office; or (ii) sends by email (to Noteholders providing satisfactory proof of holding) office copies of these presents, the Agency Agreement and the then latest audited balance sheet and profit and loss account (consolidated if applicable) of the Group;
(s) promptly provide the Trustee with copies of all supplements and/or amendments and/or restatements of the Programme Agreement;
(t) prior to making any modification or amendment or supplement to these presents, procure the delivery of (a) legal opinion(s) as to English and any other relevant law, addressed to the Trustee, dated the date of such modification or amendment or supplement, as the case may be, and in a form reasonably acceptable to the Trustee from legal advisers reasonably acceptable to the Trustee; and
(u) give notice to the Trustee of the proposed redemption of the Notes of any Series at least 5 business days in London prior to the giving of any notice of redemption in respect of such Notes pursuant to Condition 13 14 (Notices);
(v) if payments by the Issuer or the Guarantors of principal or interest in respect of the Notes or relative Coupons shall become subject generally to the taxing jurisdiction of any territory or any political sub-division or any authority therein or thereof having power to tax other than or in addition to the United Kingdom or any political sub-division or any authority therein or thereof having power to tax, immediately upon becoming aware thereof notify the Trustee of such event and (unless the Trustee otherwise agrees) enter forthwith into a trust deed supplemental to this Trust Deed, giving to the Trustee an undertaking or covenant in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 7 8 (Taxation) with the substitution for (or, as the case may be, the addition to) the references therein to the United Kingdom or any political sub-division thereof or any authority therein or thereof having power to tax of references to that other or additional territory or any political sub-division thereof or any authority therein or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid; such trust deed also (where applicable) to modify Condition 6.2 7.2 (
Appears in 1 contract
Samples: Supplemental Trust Deed
