SUPPLEMENT TO TRUSTEE ACTS. SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Xxx 0000, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee Acts and by way of supplement thereto it is expressly declared as follows: (A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by any of the relevant Obligors, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting in good faith on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be authentic provided that such error or lack of authenticity shall not be manifest. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the relevant Issuer or by any two Directors of Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or by any two Directors of CSF (where the relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF), and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate. (D) The Trustee shall be at liberty to hold or to place these presents and any other documents relating thereto or to deposit them in any part of the world with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such holding or deposit and may pay all sums required to be paid on account of or in respect of any such deposit. (E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the relevant Issuer, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default or any Potential Event of Default has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default or Potential Event of Default has occurred and that each of the relevant Obligors is observing and performing all its obligations under these presents. (G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, powers, authorities and discretions under these presents (the exercise or non-exercise of which as between the Trustee and the Noteholders, the Receiptholders and Couponholders shall be conclusive and binding on the Noteholders, the Receiptholders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (H) The Trustee shall not be liable to any person by reason of having acted upon any Extraordinary Resolution in writing or any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution, (in the case of an Extraordinary Resolution in writing) that not all such holders had signed the Extraordinary Resolution or that for any reason the resolution was not valid or binding upon such holders and the relative Receiptholders and Couponholders. (I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Note, Receipt or Coupon purporting to be such and subsequently found to be forged or not authentic provided that such forgery or lack of authenticity shall not be manifest. (J) Without prejudice to the right of indemnity by law given to trustees, each of the relevant Obligors shall indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be properly and reasonably incurred by it or him in the execution or purported execution of any of its or his trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment. (K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) disclose to any Noteholder, Receiptholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by any of the relevant Obligors or any other person in connection with the trusts of these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and such disclosure is permitted by applicable law and (in the absence of such certification and permission) no Noteholder, Receiptholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the relevant Issuer and any rate, method and date so agreed shall be binding on the relevant Obligors, the Noteholders, the Receiptholders and the Couponholders. (N) The Trustee as between itself and the Noteholders, the Receiptholders and the Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Noteholders, the Receiptholders and the Couponholders. (O) In connection with the exercise by it of any of its trusts, powers, authorities or discretions under these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution), the Trustee shall have regard to the general interests of the Noteholders as a class but shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number) and, in particular but without limitation, shall not have regard to the consequences of such exercise for individual Noteholders, Receiptholders or Couponholders (whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder be entitled to claim, from the relevant Obligors, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders, the Receiptholders or Couponholders except to the extent already provided for in Condition 8 and/or any undertaking given in addition thereto or in substitution therefor under these presents. (P) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual and proper professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents. (Q) The Trustee may (upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable) whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions vested in the Trustee by these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think fit. Provided that the Trustee shall have exercised reasonable care in the selection of any such delegate, the Trustee shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the relevant Issuer. (R) The Trustee may in the conduct of the trusts of these presents (upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable) instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). Provided that the Trustee shall have exercised reasonable care in the selection of any such agent, the Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent. (S) The Trustee shall not be responsible to any person for failing to request, require or receive any legal opinion relating to any Notes or for checking or commenting upon the content of any such legal opinion. (T) The Trustee shall not be concerned, and need not enquire, as to whether or not any Notes are issued in breach of the Programme Limit. (U) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification purporting to be issued or given by Euroclear and/or Clearstream, Luxembourg whether pursuant to Clause 3(E) or otherwise and subsequently found to be forged or not authentic. (V) Any certificate or report of the Auditors or any other person called for by or provided to the Trustee in accordance with or for the purposes of these presents may be relied upon by the Trustee as sufficient evidence of the facts stated therein whether or not such certificate or report and/or any engagement letter or other document entered into by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other person in respect thereof. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in relation to any determination of the principal amount of Notes represented by a NGN. Any such records, certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic.

Appears in 1 contract

Samples: Supplemental Trust Deed (Cadbury Public LTD Co)

SUPPLEMENT TO TRUSTEE ACTS. ~~SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where~~ WHERE there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee ~~Xxx 0000~~Act 2000 of Great Britain, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee Acts and by way of supplement thereto it is expressly declared as follows: (A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert ~~whether obtained~~ appointed by ~~any of~~ the ~~relevant Obligors~~Issuer, the ~~Trustee~~ Guarantor or, the Trustee, or otherwise whether or not addressed to the Trustee, and shall not be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting ~~in good faith~~ on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be authentic ~~provided that~~ except where such error or lack of authenticity ~~shall not be~~ is manifest. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the ~~relevant~~ Issuer or any two authorised officers of the Issuer and/or by any two Directors of ~~Cadbury Schweppes (where~~ the ~~relevant Issuer is CSF~~ Guarantor or ~~CSI) or by~~ any two ~~Directors~~ authorised officers of ~~CSF (where~~ the ~~relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF)~~Guarantor, and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate, whether or not addressed to the Trustee. (D) The Trustee shall be at liberty to hold ~~or to place~~ these presents and any other documents relating thereto or to deposit them in any part of the world with any custodian which the Trustee shall be at liberty to appoint under these presents which is a banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such holding or deposit and may pay all sums required to be paid on account of or in respect of any such ~~deposit~~deposit PROVIDED THAT the Trustee shall not be obliged to appoint a custodian of securities payable to bearer. (E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the ~~relevant~~ Issuer, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default or any Potential Event of Default has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default or Potential Event of Default has occurred and that each of the ~~relevant Obligors~~ Issuer and the Guarantor is observing and performing all its obligations under these presents. (G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, powers, authorities and discretions under these presents (the exercise or non-exercise of which as between the Trustee and the Noteholders, the Receiptholders and Couponholders shall be conclusive and binding on the Noteholders, the Receiptholders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (H) The Trustee shall not be liable to any person by reason of having acted upon ~~any Extraordinary Resolution in writing or~~ any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution, (in the case of an Extraordinary Resolution in writing) that not all such holders had signed the Extraordinary Resolution or that for any reason the resolution was not valid or binding upon such holders and the relative Receiptholders and Couponholders. (I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Note, Receipt or Coupon purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (J) Without prejudice to the right of indemnity by law given to trustees, each of the ~~relevant Obligors~~ Issuer and the Guarantor shall severally indemnify the Trustee and every Appointee (being an Appointee who shall have been appointed by the Trustee after prior consultation by the Trustee with the Issuer and the Guarantor and after consideration in good faith by the Trustee of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the reasonable opinion of the Trustee, such consultation and consideration was not practicable) and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be ~~properly and reasonably~~ incurred by it or him in the execution or purported execution of any of its or his trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment. (K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder, Receiptholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by ~~any of~~ the ~~relevant Obligors~~ Issuer, the Guarantor or any other person in connection with the trusts of these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no Noteholder, Receiptholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation (if practicable) with the ~~relevant~~ Issuer and any rate, method and date so agreed shall be binding on the ~~relevant Obligors~~Issuer, the Guarantor, the Noteholders, the Receiptholders and the Couponholders. (N) The Trustee as between itself and the Noteholders, the Receiptholders and the Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Noteholders, the Receiptholders and the Couponholders. (O) In connection with the exercise by it of any of its trusts, powers, authorities or discretions under these presents (including, without limitation, any modification, waiver, ~~authorisation, determination~~ authorisation or ~~substitution~~determination), the Trustee shall have regard to the ~~general~~ interests of the Noteholders as a class ~~but shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number)~~ and, in particular but without limitation, shall not have regard to the consequences of ~~such~~ the exercise of its trusts, powers, authorities and discretions for individual Noteholders, Receiptholders or Couponholders ~~(whatever their number)~~ resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory ~~or any political sub-division thereof~~ and the Trustee shall not be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder be entitled to claim, from the ~~relevant Obligors~~Issuer, the ~~Trustee~~ Guarantor or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders, the Receiptholders or Couponholders except to the extent already provided for in Condition 8 7 and/or any undertaking given in addition thereto or in substitution therefor under these presents. (P) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual ~~and proper~~ professional and other charges for business properly transacted and acts properly done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time properly spent by him or his firm in connection with matters arising in connection with these presents. (Q) The Trustee may (~~upon prior notification to, and~~ after prior consultation ~~with~~with the Issuer and the Guarantor and after consideration in good faith of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the ~~relevant Issuer where~~ opinion of the ~~Trustee considers~~ Trustee, such consultation ~~to be reasonably~~ and consideration is not practicable) whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions vested in the Trustee by these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think fit. ~~Provided~~ The Trustee shall, provided that ~~the Trustee~~ it shall have exercised reasonable care in the selection of any such delegate or sub-delegate, ~~the Trustee shall~~ not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the ~~relevant~~ Issuer~~. (R)~~ . ® The Trustee may (after prior consultation with the Issuer and the Guarantor and after consideration in good faith of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the opinion of the Trustee, such consultation and consideration is not practicable) in the conduct of the trusts of these presents ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a ~~lawyer~~ lawyer, nominee or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). ~~Provided~~ The Trustee shall, provided that ~~the Trustee~~ it shall have exercised reasonable care in the selection of any such ~~agent~~agent or any custodian, ~~the Trustee shall~~ not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or any custodian or be bound to supervise the proceedings or acts of any such agent. (S) The Trustee shall not be responsible to any person for failing to request, require or receive any legal opinion relating to any Notes or for checking or commenting upon the content of any such legal opinion. (T) The Trustee shall not be concerned, and need not enquire, as to whether or not any Notes are issued in breach of the Programme Limit. (U) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification purporting to be issued or given by Euroclear and/or Clearstream, Luxembourg whether pursuant to Clause 3(E) or otherwise and subsequently found to be forged or not authentic. (V) Any certificate or report of the Auditors agent or any other person called for by or provided to the Trustee in accordance with or for the purposes of these presents may be relied upon by the Trustee as sufficient evidence of the facts stated therein whether or not such certificate or report and/or any engagement letter or other document entered into by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other person in respect thereof. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trusteescustodian. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in relation to any determination of the principal amount of Notes represented by a NGN. Any such records, certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic.

Appears in 1 contract

Samples: Fourth Supplemental Trust Deed (Mbna Corp)

SUPPLEMENT TO TRUSTEE ACTS. ~~SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents.~~ Where there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee ~~Xxx 0000~~Act 2000, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee Acts and by way of supplement thereto it is expressly declared as follows: (Aa) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by ~~any of~~ the ~~relevant Obligors~~Issuer, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (Bb) Any such advice, opinion or information may be sent or obtained by letter, ~~telex, telegram,~~ facsimile transmission or ~~cable~~ electronic mail and the Trustee shall not be liable for acting ~~in good faith~~ on any advice, opinion or information purporting to be conveyed by any such letter, ~~telex, telegram,~~ facsimile transmission or ~~cable~~ electronic mail although the same shall contain some error or shall not be ~~authentic provided that such error or lack of authenticity shall not be manifest~~authentic. (Cc) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two ~~Directors~~ Authorised Signatories of the relevant Issuer or by any two Directors of Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or by any two Directors of CSF (where the relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF)Issuer, and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate. (Dd) The Trustee shall be at liberty to hold or to place these presents and any other documents relating thereto or to deposit them ~~in any part of the world~~ with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such holding or deposit and may pay all sums required to be paid on account of or in respect of any such deposit. (Ee) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of ~~any of~~ the ~~Notes by the relevant Issuer~~Notes, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (Ff) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default or any Potential Event of Default or Change of Control has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default or Potential Event of Default or Change of Control has occurred and that ~~each of~~ the ~~relevant Obligors~~ Issuer is observing and performing all its obligations under these presents. (Gg) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, powers, authorities and discretions under these presents (the exercise or non-exercise of which as between the Trustee and the ~~Noteholders, the Receiptholders~~ Noteholders and Couponholders shall be conclusive and binding on the ~~Noteholders, the Receiptholders~~ Noteholders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (Hh) The Trustee shall not be liable to any person by reason of having acted upon any Extraordinary Resolution in writing or any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the ~~holders of Notes of all or any Series~~ Noteholders in respect whereof minutes have been made and signed or any direction or request of the Noteholders even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution, (in the case of an Extraordinary Resolution in writing) that not all such holders had signed the Extraordinary Resolution or (in the case of a direction or request) it was not signed by the requisite number of holders or that for any reason the ~~resolution~~ resolution, direction or request was not valid or binding upon such holders and the relative ~~Receiptholders and~~ Couponholders. (Ii) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any ~~Note, Receipt~~ Note or Coupon purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (Jj) Without prejudice to the right of indemnity by law given to trustees, ~~each of~~ the ~~relevant Obligors~~ Issuer shall indemnify the Trustee and every Appointee and keep it or ~~him~~ them indemnified against all Liabilities to which it or he they may be or become subject without gross negligence, wilful default or fraud on its part or which may be properly ~~and reasonably~~ incurred by it or ~~him~~ them in the execution or purported execution of any of its or ~~his~~ their trusts, powers, authorities and discretions under these presents or its or ~~his~~ their functions under any such appointment or in respect of any other matter or thing properly done or omitted in any way relating to these presents or any such appointment. (Kk) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (Ll) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any ~~Noteholder, Receiptholder~~ Noteholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by ~~any of~~ the ~~relevant Obligors~~ Issuer or any other person in connection with the trusts of these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no ~~Noteholder, Receiptholder~~ Noteholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (Mm) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the ~~relevant~~ Issuer and any rate, method and date so agreed shall be binding on the ~~relevant Obligors~~Issuer, the ~~Noteholders, the Receiptholders~~ Noteholders and the Couponholders. (Nn) The ~~Trustee~~ Trustee, as between itself and the ~~Noteholders, the Receiptholders~~ Noteholders and the ~~Couponholders~~ Couponholders, may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the ~~Noteholders, the Receiptholders~~ Noteholders and the Couponholders. (Oo) In connection with the exercise by it of any of its trusts, powers, authorities or discretions under these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution), the Trustee shall have regard to the general interests of the Noteholders as a class but shall not have regard to any interests arising from circumstances particular to individual ~~Noteholders, Receiptholders~~ Noteholders or Couponholders (whatever their number) and, in particular but without limitation, shall not have regard to the consequences of such exercise for individual ~~Noteholders, Receiptholders~~ Noteholders or Couponholders (whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any ~~Noteholder, Receiptholder~~ Noteholder or Couponholder be entitled to claim, from the ~~relevant Obligors~~Issuer, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual ~~Noteholders, the Receiptholders~~ Noteholders or Couponholders except to the extent already provided for in Condition 8 7 (Taxation) and/or any undertaking given in addition thereto or in substitution therefor under these presents. (Pp) ~~Any~~ Without prejudice to Clause 14, any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual ~~and proper~~ professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents. (Qq) The Trustee may ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ whenever it thinks fit delegate by power of attorney or otherwise to any ~~person or persons~~ person, persons, or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions vested in the Trustee by these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think ~~fit~~fit and following consultation with the Issuer. ~~Provided that~~ If the Trustee ~~shall have~~ has consulted the Issuer and has exercised reasonable care in the selection of ~~any such delegate, the Trustee~~ a delegate or sub-delegate it shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the ~~relevant~~ Issuer. (Rr) The Trustee may appoint and pay any person to act as custodian or nominee on any terms in relation to such assets of the trusts constituted by these presents as the Trustee may determine, including for the purpose of depositing with a custodian these presents or any document relating to the trusts constituted by these presents and the Trustee shall not be responsible for any liability incurred by reason of the misconduct, omission or default on the part of any person appointed by it hereunder or be bound to supervise the proceedings or acts of such person; the Trustee is not obliged to appoint a custodian if the Trustee invests in securities payable to bearer. (s) The Trustee may in the conduct of the trusts of these presents ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). ~~Provided that the Trustee shall have exercised reasonable care in the selection of any such agent, the~~ The Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent. (St) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of these presents or any other document relating or expressed to be supplemental thereto and shall not be liable for any failure to obtain any licence, consent or other authority for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating or expressed to be supplemental thereto. (u) The Trustee shall not be responsible to any person for failing to request, require or receive any legal opinion relating to ~~any~~ the Notes or for checking or commenting upon the content of any such legal opinion. (T) The Trustee shall not be concerned, and need not enquire, as to whether or not any Notes are issued in breach of the Programme Limit. (U) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification purporting to be issued or given by Euroclear and/or Clearstream, Luxembourg whether pursuant to Clause 3(E) or otherwise and subsequently found to be forged or not authentic. (Vv) Any certificate or report of the ~~Auditors~~ Auditors, the Issuer or any other ~~person~~ expert called for by or provided to the Trustee in accordance with or for the purposes of these presents may be relied upon by the Trustee as sufficient evidence of the facts stated therein whether or not such certificate or report and/or any engagement letter or other document entered ~~into~~ by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other ~~person~~ expert in respect thereof~~. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees~~. (Ww) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in relation to any determination of the principal amount of Notes represented by a ~~NGN~~Global Note standing to the account of any person. Any such records, certificate or other document shall be conclusive and binding for all purposes. Any such certificate or other document may comprise any form of statement or print out of electronic records provided by the relevant clearing system (including Euroclear’s EasyWay and or Clearstream, Luxembourg’s Xact Web Portal system) in accordance with its usual procedures and in which the holder of a particular principal amount of Notes is clearly identified together with the amount of such holding. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, ~~Luxembourg~~ Luxembourg, and subsequently found to be forged or not authentic. (x) The Trustee shall be entitled to require that any indemnity, security or prefunding given to it by the Noteholders or any of them be given on a joint and several basis and be supported by evidence satisfactory to it as to the financial standing and creditworthiness of each counterparty and/or as to the value of the security and an opinion as to the capacity, power and authority of each counterparty and/or the validity and effectiveness of the security. (y) Subject to the requirements, if any, of the Luxembourg Stock Exchange, any corporation into which the Trustee shall be merged or with which it shall be consolidated or any company resulting from any such merger or consolidation shall be a party hereto and shall be the Trustee under these presents without executing or filing any paper or document or any further act on the part of the parties thereto. (z) Nothing contained in this Trust Deed shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or the exercise of any power, rights, authority or discretion hereunder if it determines in its sole discretion that the repayment of the funds or the provision of an indemnity satisfactory to it against, or security and/or prefunding for, such risk or liability is not assured to it and the Trustee shall have no obligation to take any such action or exercise any such power, right, authority or discretion unless so indemnified or holding such security or in receipt of such prefunding. (aa) Unless notified to the contrary, the Trustee shall be entitled to assume without enquiry (other than requesting a certificate pursuant to Clause 13.1(o)) that no Notes are held by, for the benefit of, or on behalf of, the Issuer or any Subsidiary of the Issuer. (bb) The Trustee shall not be responsible for monitoring whether any notices to Noteholders are given in compliance with the requirements of the Luxembourg Stock Exchange or with any other legal or regulatory requirements.

Appears in 1 contract

Samples: Trust Deed

SUPPLEMENT TO TRUSTEE ACTS. ~~SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where~~ WHERE there are any inconsistencies between the Trustee Acts and the provisions of ~~these presents~~the Trusts, the provisions of ~~these presents~~ the Trusts shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Xxx ~~0000~~0000 of Great Britain, the provisions of ~~these presents~~ the Trusts shall constitute a restriction or exclusion for the purposes of that Act. The ~~Trustee~~ Security Agents shall have all the powers conferred upon trustees by the Trustee Acts and by way of supplement thereto it is expressly declared as follows: (A) The ~~Trustee~~ Security Agents may in relation to ~~these presents~~ the Trusts, act on the advice or certificate or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, ~~auctioneer~~ auctioneer, liquidator, receiver or other expert ~~whether obtained~~ appointed by ~~any~~ the Issuer, the Guarantor or, one or both of the ~~relevant Obligors~~Security Agents, ~~the Trustee~~ or otherwise whether or not addressed to a Security Agent and no Security Agent shall ~~not~~ be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and ~~the Trustee~~ no Security Agent shall ~~not~~ be liable for acting ~~in good faith~~ on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be ~~authentic provided that such error or lack of authenticity shall not be manifest~~authentic. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the relevant Issuer or by any two Directors of Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or by any two Directors of CSF (where the relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF), and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate. (D) The Trustee Security Agents shall be at liberty to hold ~~or to place these presents~~ the Agency Agreement, the Guarantee and any other documents relating thereto or to deposit them in any part of the world with any custodian which the London Paying Agent, or the NY Paying Agent, as the case may be, shall be at liberty to appoint under the Trusts, which is a banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the ~~Trustee~~ London Paying Agent, or the NY Paying Agent, as the case may be, to be of good repute and ~~the Trustee~~ no Security Agent shall ~~not~~ be responsible for or required to insure against any Liability incurred in connection with any such holding or deposit and may pay all sums required to be paid on account of or in respect of any such ~~deposit~~deposit PROVIDED THAT no Security Agent shall be obliged to appoint a custodian of securities payable to bearer. (ED) ~~The Trustee~~ No Security Agent, in its capacity as Security Agent, shall ~~not~~ be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the ~~relevant~~ Issuer, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default or any Potential Event of Default has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default or Potential Event of Default has occurred and that each of the relevant Obligors is observing and performing all its obligations under these presents. (GE) Save as expressly otherwise provided ~~in these presents~~herein, the ~~Trustee~~ Security Agents shall have absolute and uncontrolled discretion as to the exercise or non-exercise of ~~its~~ their trusts, powers, authorities and discretions under ~~these presents~~ the Trusts (the exercise or non-exercise of which as between the ~~Trustee~~ London Paying Agent, or the NY Paying Agent, as the case may be, and the Noteholders, ~~the Receiptholders and Couponholders~~ shall be conclusive and binding on the Noteholders~~, the Receiptholders and Couponholders~~,) and the Security Agents shall not be responsible for any Liability which may result from their exercise or non-exercise. (HF) ~~The Trustee~~ No Security Agent, shall ~~not~~ be liable to any person by reason of having acted upon ~~any Extraordinary Resolution in writing or~~ any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution, or (in the case of an Extraordinary Resolution in writing) that not all such holders had signed the Extraordinary Resolution or that for any reason the resolution was not valid or binding upon such ~~holders and the relative Receiptholders and Couponholders~~holders. (IG) ~~The Trustee~~ No Security Agent shall ~~not~~ be liable to any person by reason of having accepted as valid or not having rejected any ~~Note, Receipt or Coupon~~ Note purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (JH) Without prejudice to the right of indemnity by law given to trustees, each of the ~~relevant Obligors~~ Issuer and the Guarantor shall severally indemnify the ~~Trustee~~ Security Agents, and every Appointee (being an Appointee who shall have been appointed by a Security Agent, after prior consultation by such Security Agent, with the Issuer and the Guarantor and after consideration in good faith by such Security Agent, of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the reasonable opinion of that Security Agent, such consultation and consideration was not practicable) and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be ~~properly and reasonably~~ incurred by it or him in the execution or purported execution of any of its or his trusts, powers, authorities and discretions under ~~these presents~~ the Trusts, or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to ~~these presents~~ the Trusts or any such appointment. (KI) Any consent or approval given by ~~the Trustee~~ a Security Agent, for the purposes of ~~these presents~~ the Trusts may be given on such terms and subject to such conditions (if any) as ~~the Trustee~~ such Security Agent thinks fit and notwithstanding anything to the contrary in ~~these presents~~ the Trusts may be given retrospectively. (LJ) ~~The Trustee~~ No Security Agent shall ~~not~~ (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder, ~~Receiptholder or Couponholder~~ any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to such Security Agent by the ~~Trustee by any of~~ Issuer, the ~~relevant Obligors~~ Guarantor or any other person in connection with the trusts of these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders Trusts and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no ~~Noteholder, Receiptholder or Couponholder~~ Noteholder shall be entitled to take any action to obtain from ~~the Trustee~~ a Security Agent any such information. (MK) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and The Security Agents as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the relevant Issuer and any rate, method and date so agreed shall be binding on the relevant Obligors, the Noteholders, the Receiptholders between themselves and the ~~Couponholders. (N) The Trustee as between itself and~~ beneficiaries of the ~~Noteholders, the Receiptholders and the Couponholders~~ Trusts may determine all questions and doubts arising in relation to any of the provisions of ~~these presents~~the Trusts. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the ~~Trustee,~~ Security Agents shall be conclusive and shall bind ~~the Trustee~~ such Security Agents and the ~~Noteholders,~~ beneficiaries of the ~~Receiptholders and the Couponholders~~Trusts. (OL) In connection with the exercise by it of any of its trusts, powers, authorities or discretions under ~~these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution)~~the Trusts, the ~~Trustee~~ Security Agents shall have regard to the ~~general~~ interests of the Noteholders as a class ~~but shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number)~~ and, in particular but without limitation, shall not have regard to the consequences of ~~such~~ the exercise of its trusts, powers, authorities and discretions under the Trusts for individual ~~Noteholders, Receiptholders or Couponholders (whatever their number)~~ Noteholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory ~~or any political sub-division thereof~~ and the ~~Trustee~~ Security Agents shall not be entitled to require, nor shall any ~~Noteholder, Receiptholder or Couponholder~~ Noteholder be entitled to claim, from the ~~relevant Obligors~~Issuer, the ~~Trustee~~ Guarantor or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual ~~Noteholders, the Receiptholders or Couponholders~~ Noteholders except to the extent already provided for in Condition ~~8 and/or any undertaking given in addition thereto or in substitution therefor under these presents~~6 to this Schedule. (PM) Any trustee of these ~~presents~~ Trusts being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual ~~and proper~~ professional and other charges for business properly transacted and acts properly done by him or his firm in connection with the ~~trusts of these presents~~ Trusts, and also his reasonable charges in addition to disbursements for all other work and business done and all time properly spent by him or his firm in connection with matters arising in connection with ~~these presents~~the Trusts. (QN) ~~The Trustee~~ Each Security Agent may (~~upon prior notification to, and~~ after prior consultation ~~with~~with the Issuer and the Guarantor and after consideration in good faith of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the ~~relevant Issuer where the Trustee considers~~ opinion of a Security Agent, such consultation ~~to be reasonably~~ and consideration is not practicable) whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons ~~(whether being a joint trustee of these presents or not)~~ all or any of its trusts, powers, authorities and discretions vested in the ~~Trustee by these presents~~Security Agents under the Trusts. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the ~~Trustee~~ such Security Agent may in the interests of the Noteholders think fit. ~~Provided~~ The Security Agents shall, provided that ~~the Trustee shall have exercised~~ reasonable care has been exercised in the selection of any such delegate or sub-delegate, ~~the Trustee shall~~ not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The ~~Trustee~~ London Paying Agent, or the NY Paying Agent, as the case may be, shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the ~~relevant~~ Issuer. (RO) The ~~Trustee~~ Security Agents may (after prior consultation with the Issuer and the Guarantor and after consideration in good faith of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the opinion of a Security Agent, such consultation and consideration is not practicable) in the conduct of the ~~trusts of these presents (upon prior notification to~~Trusts, ~~and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a ~~lawyer~~ lawyer, nominee or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with ~~these presents~~ the Trusts (including the receipt and payment of money). ~~Provided~~ The London Paying Agent, or the NY Paying Agent, as the case may be, shall, provided that ~~the Trustee~~ it shall have exercised reasonable care in the selection of any such ~~agent~~agent or any custodian, ~~the Trustee shall~~ not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or any custodian or be bound to supervise the proceedings or acts of any such ~~agent~~agent or any custodian. (SP) ~~The Trustee~~ Each Security Agent may (after prior consultation with the Issuer and the Guarantor and after consideration in good faith of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the opinion of such Security Agent, such consultation and consideration is not practicable) appoint and pay any person to act as a custodian or nominee on any terms in relation to such assets of the Trusts as the London Paying Agent, or the NY Paying Agent, as the case may be, may determine, including for the purpose of depositing with a custodian the Agency Agreement, the Guarantee or any document relating to the Trusts and no Security Agent shall be responsible for any Liability incurred by reason of the misconduct, omission or default on the part of any person appointed by it hereunder or to be bound to supervise the proceedings or acts of such person; the London Paying Agent, or the NY Paying Agent, as the case may be, is not obliged to appoint a custodian if the London Paying Agent, or the NY Paying Agent, as the case may be, invests in securities payable to bearer. (Q) No Security Agent shall be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of the Trusts, or any other document relating or expressed to be supplemental thereto and shall not be liable for any failure to obtain any licence, consent or other authority for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of the Agency Agreement, the Guarantee or any other document relating or expressed to be supplemental thereto. (R) No Security Agent shall be responsible to any person for failing to request, require or receive any legal opinion relating to any Notes or for checking or commenting upon the content of any such legal opinion. (TS) ~~The Trustee~~ No Security Agent shall ~~not~~ be concerned, and need not enquire, as to whether or not any Notes are issued in breach of the Programme Limit. (UT) ~~The Trustee~~ No Security Agent shall ~~not~~ be ~~liable~~ obliged to take any ~~person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification purporting~~ action under the Trusts unless indemnified to ~~be issued or given by Euroclear and/or Clearstream, Luxembourg whether pursuant to Clause 3(E) or otherwise and subsequently found to be forged or not authentic~~its satisfaction. (VU) Any certificate or report of the Auditors or any other person called for by or provided to the Trustee in accordance with or for the purposes of these presents may be relied upon by the Trustee as sufficient evidence of the facts stated therein whether or not such certificate or report and/or any engagement letter or other document entered into by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other person in respect thereof. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in In relation to any ~~determination~~ asset held by it under the Trusts, a Security Agent may appoint as its nominee any banker or banking company or company whose business includes the provision of nominee services believed by the ~~principal amount of Notes represented by a NGN. Any such records~~London Paying Agent, ~~certificate~~ or ~~other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted~~ the NY Paying Agent, as ~~valid or not having rejected any such records~~the case may be, ~~certificate or other document to such effect purporting~~ to be ~~issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic~~of good repute.

Appears in 1 contract

Samples: Agency Agreement (Bank of America Corp /De/)

SUPPLEMENT TO TRUSTEE ACTS. ~~SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where~~ WHERE there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Xxx 0000, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee Acts and by way of supplement thereto it is expressly declared as follows: (A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by ~~any of~~ the ~~relevant Obligors~~Issuer, the Guarantor, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting ~~in good faith~~ on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be ~~authentic provided that such error or lack of authenticity shall not be manifest~~authentic. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the ~~relevant~~ Issuer or by any two Directors of ~~Cadbury Schweppes (where~~ the ~~relevant Issuer is CSF or CSI) or by any two Directors of CSF (where the relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF)~~Guarantor, and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate. (D) The Trustee shall be at liberty to hold ~~or to place~~ these presents and any other documents relating thereto or to deposit them in any part of the world with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such holding or deposit and may pay all sums required to be paid on account of or in respect of any such deposit. (E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the ~~relevant~~ Issuer, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default or any Potential Event of Default has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default or Potential Event of Default has occurred and that each of the ~~relevant Obligors~~ Issuer and the Guarantor is observing and performing all its obligations under these presents. (G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, powers, authorities and discretions under these presents (the exercise or non-exercise of which as between the Trustee and the Noteholders, the Receiptholders and Couponholders shall be conclusive and binding on the Noteholders, the Receiptholders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (H) The Trustee shall not be liable to any person by reason of having acted upon any Extraordinary Resolution in writing or any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution, (in the case of an Extraordinary Resolution in writing) that not all such holders had signed the Extraordinary Resolution or that for any reason the resolution was not valid or binding upon such holders and the relative Receiptholders and Couponholders. (I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Note, Receipt or Coupon purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (J) Without prejudice to the right of indemnity by law given to trustees, each of the ~~relevant Obligors~~ Issuer and the Guarantor shall indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be ~~properly and reasonably~~ incurred by it or him in the execution or purported execution of any of its or his trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment. (K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder, Receiptholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by ~~any of~~ the ~~relevant Obligors~~ Issuer, the Guarantor or any other person in connection with ~~the trusts of~~ these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no ~~Noteholder~~Holder, Receiptholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the ~~relevant~~ Issuer and any rate, method and date so agreed shall be binding on the ~~relevant Obligors~~Issuer, the Guarantor, the Noteholders, the Receiptholders and the Couponholders. (N) The Trustee as between itself and the Noteholders, the Receiptholders and the Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Noteholders, the Receiptholders and the Couponholders. (O) In connection with the exercise by it of any of its trusts, powers, authorities or discretions under these presents (including, without limitation, any modification, waiver, ~~authorisation, determination~~ authorisation or ~~substitution~~determination), the Trustee shall have regard to the general interests of the Noteholders as a class but shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number) and, in particular but without limitation, shall not have regard to the consequences of such exercise for individual Noteholders, Receiptholders or Couponholders (whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder be entitled to claim, from the ~~relevant Obligors~~Issuer, the Guarantor, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders, the Receiptholders or Couponholders except to the extent already provided for in Condition 8 7 and/or any undertaking given in addition thereto or in substitution therefor under these presents. (P) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual ~~and proper~~ professional and other charges properly incurred for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents. (Q) The Trustee may ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ whenever it thinks ~~fit~~ fit, subject to the consent of the Issuer (such consent not to be unreasonably withheld) except following the occurrence of an Event of Default or a Potential Event of Default or if the Trustee has reasonable grounds to believe that an Event of Default or a Potential Event of Default has occurred or is about to occur or if the Trustee has been advised by its legal advisers that such delegation is necessary in order to avoid a conflict of interest or a possible conflict of interest in each of which cases no such consent of the Issuer as aforesaid shall be required, delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions ~~vested in the Trustee by~~ under these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think fit. Provided that the Trustee shall have exercised reasonable care in the selection of ~~any~~ such ~~delegate,~~ delegate the Trustee shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the ~~relevant~~ Issuer. (R) The Trustee may after consultation with the Issuer and the Guarantor unless, in the opinion of the Trustee, such consultation would be materially prejudicial to the interests of the Noteholders in the conduct of the trusts of these presents ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). Provided that the Trustee shall have exercised reasonable care in the selection of ~~any~~ such ~~agent,~~ agent the Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent. The Trustee shall within a reasonable time after appointing such an agent or after any renewal, extension or termination of such an appointment give notice thereof to the Issuer. (S) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of these presents or any other document relating or expressed to be supplemental thereto and shall not be liable for any ~~person~~ failure to obtain any licence, consent or other authority for ~~failing~~ the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating or expressed to ~~request, require or receive any legal opinion relating to any Notes or for checking or commenting upon the content of any such legal opinion~~be supplemental thereto. (T) The Trustee ~~shall not~~ may call for any document and/or evidence and/or information and/or certification to be ~~concerned~~issued or given by Euroclear or Clearstream, ~~and need not enquire,~~ Luxembourg as to ~~whether~~ the nominal amount of Notes represented by a Global Note standing to the account of any person. Any such certificate or ~~not any Notes are issued in breach of the Programme Limit. (U)~~ other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification to such effect purporting to be issued or given by Euroclear ~~and/or~~ or Clearstream, Luxembourg ~~whether pursuant to Clause 3(E) or otherwise~~ and subsequently found to be forged or not authentic. (VU) Any certificate or report of the Auditors of the Guarantor or any other person called for by or provided to the Trustee in accordance with or for the purposes of these presents may be relied upon by the Trustee as sufficient evidence of the facts stated therein whether or not such certificate or report and/or any engagement letter or other document entered into by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors of the Guarantor or such other person in respect thereof~~. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees~~. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in relation to any determination of the principal amount of Notes represented by a NGN. Any such records, certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic.

Appears in 1 contract

Samples: Supplemental Trust Deed (Countrywide Credit Industries Inc)

SUPPLEMENT TO TRUSTEE ACTS. ~~SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where~~ WHERE there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Xxx ~~0000~~0000 of Great Britain, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee Acts of England and Wales and by way of supplement thereto but subject to Clause 17 it is expressly declared as follows: (A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by ~~any of~~ the ~~relevant Obligors~~Issuer, PT, PTC, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting ~~in good faith~~ on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be ~~authentic provided that such error or lack of authenticity shall not be manifest~~authentic. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the ~~relevant~~ Issuer or and/or by any two Directors of ~~Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or by any two Directors of CSF (where the relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF),~~ either Keep Well Provider and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate. (D) The Trustee shall be at liberty to hold or to place these presents and any other documents relating thereto ~~or to deposit them~~ in any part of the world with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such ~~holding or~~ deposit and may pay all sums required to be paid on account of or in respect of any such deposit. (E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the ~~relevant~~ Issuer, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default or any Potential Event of Default has ~~occurred~~ happened and, until it shall have actual knowledge or express notice ~~pursuant to these presents~~ to the contrary, the Trustee shall be entitled to assume that no Event of Default or Potential Event of Default has ~~occurred~~ happened and that each of the ~~relevant Obligors~~ Issuer, PT and PTC is observing and performing all its obligations under these presents. (G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise ~~or non-exercise~~ of its trusts, powers, authorities and discretions under these presents (the exercise ~~or non-exercise~~ of which as between the Trustee and the Noteholders, ~~the~~ Receiptholders and Couponholders shall be conclusive and binding on the Noteholders, ~~the~~ Receiptholders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (H) The Trustee shall not be liable to any person by reason of having acted upon any Extraordinary Resolution in writing or any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed by the chair of the meeting even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the ~~resolution,~~ resolution or (in the case of an Extraordinary Resolution in writing) that not all ~~such~~ holders of Notes had signed the Extraordinary Resolution or that for any reason the resolution was not valid or binding upon such holders and the relative Receiptholders and Couponholders. (I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Note, Receipt or Coupon purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (J) Without prejudice to the right of indemnity by law given to trustees, each of the ~~relevant Obligors~~ Issuer, PT and PTC shall severally indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be ~~properly and reasonably~~ incurred by it or him in the execution or purported execution of any of its ~~or his~~ trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment. (K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder, Receiptholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by ~~any of~~ the ~~relevant Obligors~~ Issuer, PT or PTC or any other person in connection with ~~the trusts of~~ these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no Noteholder, Receiptholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the Issuer, PT or PTC as relevant ~~Issuer~~ and any rate, method and date so agreed shall be binding on the ~~relevant Obligors~~Issuer, PT, PTC, the Noteholders, the Receiptholders and the Couponholders. (N) The Trustee as between itself and the Noteholders, ~~the~~ Receiptholders and ~~the~~ Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Noteholders, ~~the~~ Receiptholders and ~~the~~ Couponholders. (O) In connection with the exercise by it of any of its trusts, powers, authorities or and discretions under these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution), the Trustee shall have regard to the general interests of the Noteholders as a class ~~but~~ and shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number) and, in particular but without limitation, shall not have regard to the consequences of any such exercise for individual Noteholders, Receiptholders or Couponholders (whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder be entitled to claim, from the ~~relevant Obligors~~Issuer, PT, PTC, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders, ~~the~~ Receiptholders or Couponholders ~~except~~ except, in the case of the Issuer, to the extent already provided for in Condition 8 and/or any undertaking given in addition thereto or in substitution therefor under these presents. (P) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual ~~and proper~~ professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents. (Q) The Trustee may ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions ~~vested in the Trustee by~~ under these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think fit. Provided that the Trustee shall have exercised reasonable care in the selection of any such ~~delegate,~~ delegate the Trustee shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall ~~within a reasonable time~~ promptly after any such delegation or any renewal, extension or termination thereof give notice thereof to the ~~relevant~~ Issuer. (R) The Trustee may in the conduct of the trusts of these presents ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). Provided that the Trustee shall have exercised reasonable care in the selection of any such agent, the Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent. (S) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating thereto and shall not be liable for any failure to obtain any ~~person~~ licence, consent or other authority for ~~failing to request~~the execution, ~~require~~ delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or ~~receive~~ admissibility in evidence of these presents or any ~~legal opinion~~ other document relating ~~to any Notes or for checking or commenting upon the content of any such legal opinion~~thereto. (T) The Trustee ~~shall not be concerned, and need not enquire, as to whether or not~~ may certify that any ~~Notes are issued in breach~~ of the ~~Programme Limit.~~ conditions, events and acts set out in sub-paragraph (ii), (iii), (iv), (vi), (vii) or (viii) of Condition 10(a) (each of which conditions, events and acts shall, unless in any case the Trustee in its absolute discretion shall otherwise determine, for all the purposes of these presents be deemed to include the circumstances resulting therein and the consequences resulting therefrom) is in its opinion materially prejudicial to the interests of the Noteholders and any such certificate shall be conclusive and binding upon the Issuer, PT, PTC, the Noteholders, the Receiptholders and the Couponholders. (U) The Trustee may call for any document and/or evidence and/or information and/or certification to be issued or given by Euroclear, Clearstream, Luxembourg or DTC as to the nominal amount of Notes represented by a Global Note standing to the account of any person. Any such certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification to such effect purporting to be issued or given by ~~Euroclear and/or~~ Euroclear, Clearstream, Luxembourg ~~whether pursuant to Clause 3(E)~~ or ~~otherwise~~ DTC and subsequently found to be forged or not authentic. (V) Any certificate or report of the Auditors or any other person called for by or provided to the Trustee (whether or not addressed to the Trustee) in accordance with or for the purposes of these presents may be relied upon by the Trustee as sufficient evidence of the facts stated therein ~~whether or not~~ notwithstanding that such certificate or report and/or any engagement letter or other document entered into by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other person in respect thereof~~. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees~~. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in relation to any determination of the principal amount of Notes represented by a NGN. Any such records, certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic.

Appears in 1 contract

Samples: Fourth Supplemental Trust Deed (Portugal Telecom SGPS Sa)

SUPPLEMENT TO TRUSTEE ACTS. ~~SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where~~ WHERE there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Xxx 0000, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee Acts and by way of supplement thereto it is expressly declared as follows: (A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by ~~any of~~ the relevant ~~Obligors~~Issuer, Telecom Italia (where the relevant Issuer is TI Finance), the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting ~~in good faith~~ on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be ~~authentic provided that such error or lack of authenticity shall not be manifest~~authentic. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two ~~Directors~~ Authorised Signatories of the relevant Issuer or by any two ~~Directors~~ Authorised Signatories of ~~Cadbury Schweppes~~ Telecom Italia (where the relevant Issuer is ~~CSF or CSI) or by any two Directors of CSF (where the relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF~~TI Finance), and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate. (D) The Trustee shall be at liberty to hold or to place these presents and any other documents relating thereto or to deposit them ~~in any part of the world~~ with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such holding or deposit and may pay all sums required to be paid on account of or in respect of any such deposit. (E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the relevant Issuer, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default or any Potential Event of Default has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default or Potential Event of Default has occurred and that each of the relevant ~~Obligors~~ Issuer and (where the relevant Issuer is TI Finance) Telecom Italia is observing and performing all its obligations under these presents. (G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, powers, authorities and discretions under these presents (the exercise or non-exercise of which as between the Trustee and the Noteholders, the Receiptholders and Couponholders shall be conclusive and binding on the Noteholders, the Receiptholders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (H) The Trustee shall not be liable to any person by reason of having acted upon any Extraordinary Resolution in writing or any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed or any direction or request of the holders of Notes of all or any Series even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution, (in the case of an Extraordinary Resolution in writing) that not all such holders had signed the Extraordinary Resolution or (in the case of a direction or request) it was not signed by the requisite number of holders or that for any reason the ~~resolution~~ resolution, direction or request was not valid or binding upon such holders and the relative Receiptholders and Couponholders. (I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Note, Receipt or Coupon purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (J) Without prejudice to the right of indemnity by law given to trustees, each of the relevant ~~Obligors~~ Issuer and (where the relevant Issuer is TI Finance) Telecom Italia shall indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject without negligence or bad faith on its part or which may be properly ~~and reasonably~~ incurred by it or him in the execution or purported execution of any of its or his trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing properly done or omitted in any way relating to these presents or any such appointment. (K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder, Receiptholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by ~~any of~~ the relevant ~~Obligors~~ Issuer, Telecom Italia (where the relevant Issuer is TI Finance) or any other person in connection with the trusts of these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no Noteholder, Receiptholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the relevant Issuer and any rate, method and date so agreed shall be binding on the relevant ~~Obligors~~Issuer, Telecom Italia (where the relevant Issuer is TI Finance), the Noteholders, the Receiptholders and the Couponholders. (N) The ~~Trustee~~ Trustee, as between itself and the Noteholders, the Receiptholders and the ~~Couponholders~~ Couponholders, may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Noteholders, the Receiptholders and the Couponholders. (O) In connection with the exercise by it of any of its trusts, powers, authorities or discretions under these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution), the Trustee shall have regard to the general interests of the Noteholders as a class but shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number) and, in particular but without limitation, shall not have regard to the consequences of such exercise for individual Noteholders, Receiptholders or Couponholders (whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder be entitled to claim, from the relevant ~~Obligors~~Issuer, Telecom Italia (where the relevant Issuer is TI Finance), the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders, the Receiptholders or Couponholders except to the extent already provided for in Condition 8 and/or any undertaking given in addition thereto or in substitution therefor under these presents. (P) ~~Any~~ Without prejudice to Clause 15, any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual ~~and proper~~ professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents. (Q) The Trustee may ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions vested in the Trustee by these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think ~~fit~~fit and following consultation with the relevant Issuer. ~~Provided that~~ If the Trustee ~~shall have~~ has consulted the Issuer and has exercised reasonable care in the selection of ~~any such delegate, the Trustee~~ a delegate or sub-delegate it shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the relevant Issuer. (R) The Trustee may in the conduct of the trusts of these presents ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). ~~Provided that the Trustee shall have exercised reasonable care in the selection of any such agent, the~~ The Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent. (S) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of these presents or any other document relating or expressed to be supplemental thereto and shall not be liable for any failure to obtain any licence, consent or other authority for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating or expressed to be supplemental thereto. (T) The Trustee shall not be responsible to any person for failing to request, require or receive any legal opinion relating to any Notes or for checking or commenting upon the content of any such legal opinion. (TU) The Trustee shall not be concerned, and need not enquire, as to whether or not any Notes are issued in breach of the Programme Limit. (U) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification purporting to be issued or given by Euroclear and/or Clearstream, Luxembourg whether pursuant to Clause 3(E) or otherwise and subsequently found to be forged or not authentic. (V) Any certificate or report of the Auditors or any other person called for by or provided to the Trustee in accordance with or for the purposes of these presents may be relied upon by the Trustee as sufficient evidence of the facts stated therein whether or not such certificate or report and/or any engagement letter or other document entered ~~into~~ by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other person in respect thereof~~. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees~~. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in relation to any determination of the principal amount of Notes represented by a NGN. Any such records, certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic.

Appears in 1 contract

Samples: Trust Deed (Telecom Italia S P A)

SUPPLEMENT TO TRUSTEE ACTS. SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee ~~in relation to~~ under the trusts constituted by these presents. Where there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Xxx 0000, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee ~~Acts~~ Axx 0000 of England and Wales and by way of supplement thereto it is expressly declared as follows: (A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by ~~any of~~ the relevant ~~Obligors~~Issuer, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting. The Trustee may ~~rely,~~ rely without liability to ~~the~~ Noteholders, Receiptholders or ~~Couponholders,~~ Couponholders on any certificate or report prepared by the Auditors pursuant to ~~these presents~~ the Conditions and/or the Trust Deed whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting in good faith on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be ~~authentic provided that such error or lack of authenticity shall not be manifest~~authentic. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by ~~any~~ two Directors of the relevant Issuer or by any two Directors of Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or by any two Directors of CSF (where the relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF), and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate. (D) The Trustee shall be at liberty to hold ~~or to place~~ these presents and any other documents relating thereto or to deposit them in any part of the world with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such holding or deposit and may pay all sums required to be paid on account of or in respect of any such deposit. (E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the relevant Issuer, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default or any Potential Event of Default has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default or Potential Event of Default has occurred and that ~~each of the relevant Obligors is~~ Issuer is/are observing and performing all ~~its~~ its/their obligations under these presents. (G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, powers, authorities and discretions under these presents (the exercise or non-exercise of which as between the Trustee and the Noteholders, the Receiptholders and the Couponholders shall be conclusive and binding on the Noteholders, the Receiptholders and the Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (H) The Trustee shall not be liable to any person by reason of having acted upon any Extraordinary Resolution in writing or any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution, (in the case of an Extraordinary Resolution in writing) that not all such holders had signed the Extraordinary Resolution or that for any reason the resolution was not valid or binding upon such holders and the relative Receiptholders and Couponholders. (I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Note, Receipt or Coupon purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (J) Without prejudice to the right of indemnity by law given to trustees, ~~each of~~ the relevant ~~Obligors~~ Issuer shall indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be ~~properly and reasonably~~ incurred by it or him in the execution or purported execution of any of its or his trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment. (K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder, Receiptholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by ~~any of~~ the relevant ~~Obligors~~ Issuer or any other person in connection with ~~the trusts of~~ these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no ~~Noteholder~~Couponholder, Receiptholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the relevant Issuer and any rate, method and date so agreed shall be binding on the relevant ~~Obligors~~Issuer, the Noteholders, the Receiptholders and the Couponholders. (N) The Trustee as between itself and the Noteholders, the Receiptholders and the Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Noteholders, the Receiptholders and the Couponholders. (O) In connection with the exercise by it of any of its trusts, powers, authorities or discretions under these presents (including, without limitation, any modification, waiver, ~~authorisation, determination~~ authorisation or ~~substitution~~determination), the Trustee shall have regard to the general interests of the Noteholders as a class but shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number) and, in particular but without limitation, shall not have regard to the consequences of such exercise for individual Noteholders, Receiptholders or Couponholders (whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder be entitled to claim, from the relevant ~~Obligors~~Issuer, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders, the Receiptholders or Couponholders except to the extent already provided for in Condition 8 and/or any undertaking given in addition thereto or in substitution therefor under these presents. (P) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual and proper professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents. (Q) The Trustee may ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions ~~vested in the Trustee by~~ under these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think fit. Provided that the Trustee shall have exercised reasonable care in the selection of any such ~~delegate,~~ delegate the Trustee shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the relevant Issuer. (R) The Trustee may in the conduct of the trusts of these presents ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). Provided that the Trustee shall have exercised reasonable care in the selection of any such ~~agent,~~ agent the Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent. (S) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of these presents or any other document relating or expressed to be supplemental thereto and shall not be liable for any failure to obtain any licence, consent or other authority for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating or expressed to be supplemental thereto. (T) The Trustee may call for any certificate or other document to be issued by Euroclear or Clearstream, Luxembourg as to the nominal amount of Notes represented by a Global Note standing to the account of any person. Any such certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic. (U) The Trustee shall not be responsible to any person for failing to request, require or receive any legal opinion relating to the Notes of any ~~Notes~~ Series or for checking or commenting upon the content of any such legal opinion. (TV) The Trustee shall not be concerned, and need not enquire, as to whether or not any Notes are issued in breach of the Programme Limit. (UW) The Trustee ~~shall not be liable to~~ may rely on any person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification purporting to be issued or given by Euroclear and/or Clearstream, Luxembourg whether pursuant to Clause 3(E) or otherwise and subsequently found to be forged or not authentic. (V) Any certificate or report (whether or not addressed to the Trustee) of the Auditors or any other person called for by or provided to the Trustee ~~in accordance with or~~ for the purposes of these presents ~~may be relied upon by the Trustee as sufficient evidence of the facts stated therein whether or not~~ notwithstanding that such certificate or report and/or any engagement letter or other document entered into by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other person in respect thereof~~. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees~~. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in relation to any determination of the principal amount of Notes represented by a NGN. Any such records, certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic.

Appears in 1 contract

Samples: Trust Deed (United Utilities PLC)

SUPPLEMENT TO TRUSTEE ACTS. ~~SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where~~ WHERE there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Xxx ~~0000~~0000 of Great Britain, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee Acts of England and Wales and by way of supplement thereto but subject to Clause 17 it is expressly declared as follows: (A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by ~~any of~~ the ~~relevant Obligors~~Issuers, PTC, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting ~~in good faith~~ on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be ~~authentic provided that such error or lack of authenticity shall not be manifest~~authentic. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the relevant Issuer or and/or by any two Directors of ~~Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or by any two Directors of CSF (where the relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF),~~ either Keep Well Provider and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate. (D) The Trustee shall be at liberty to hold or to place these presents and any other documents relating thereto ~~or to deposit them~~ in any part of the world with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such ~~holding or~~ deposit and may pay all sums required to be paid on account of or in respect of any such deposit. (E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the ~~relevant Issuer~~Issuers, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of ~~Default or~~ Default, any Potential Event of Default or Put Event has ~~occurred~~ happened and, until it shall have actual knowledge or express notice ~~pursuant to these presents~~ to the contrary, the Trustee shall be entitled to assume that no Event of ~~Default or~~ Default, Potential Event of Default or Put Event has ~~occurred~~ happened and that each of the ~~relevant Obligors~~ Issuers and PTC is observing and performing all its obligations under these presents. (G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise ~~or non-exercise~~ of its trusts, powers, authorities and discretions under these presents (the exercise ~~or non-exercise~~ of which as between the Trustee and the Noteholders, ~~the~~ Receiptholders and Couponholders shall be conclusive and binding on the Noteholders, ~~the~~ Receiptholders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (H) The Trustee shall not be liable to any person by reason of having acted upon any Extraordinary Resolution in writing or any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed by the chair of the meeting even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the ~~resolution,~~ resolution or (in the case of an Extraordinary Resolution in writing) that not all ~~such~~ holders of Notes had signed the Extraordinary Resolution or that for any reason the resolution was not valid or binding upon such holders and the relative Receiptholders and Couponholders. (I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Note, Receipt or Coupon purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (J) Without prejudice to the right of indemnity by law given to trustees, each of the ~~relevant Obligors~~ Issuers and PTC shall severally indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be ~~properly and reasonably~~ incurred by it or him in the execution or purported execution of any of its ~~or his~~ trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment. (K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder, Receiptholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by ~~any of~~ the ~~relevant Obligors~~ Issuers or PTC or any other person in connection with ~~the trusts of~~ these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no Noteholder, Receiptholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the Issuers or PTC as relevant ~~Issuer~~ and any rate, method and date so agreed shall be binding on the ~~relevant Obligors~~Issuers, PTC, the Noteholders, the Receiptholders and the Couponholders. (N) The Trustee as between itself and the Noteholders, ~~the~~ Receiptholders and ~~the~~ Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Noteholders, ~~the~~ Receiptholders and ~~the~~ Couponholders. (O) In connection with the exercise by it of any of its trusts, powers, authorities or and discretions under these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution), the Trustee shall have regard to the general interests of the Noteholders as a class ~~but~~ and shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number) and, in particular but without limitation, shall not have regard to the consequences of any such exercise for individual Noteholders, Receiptholders or Couponholders (whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder be entitled to claim, from the ~~relevant Obligors~~Issuers, PTC, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders, ~~the~~ Receiptholders or Couponholders ~~except~~ except, in the case of the Issuers, to the extent already provided for in Condition 8 and/or any undertaking given in addition thereto or in substitution therefor under these presents. (P) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual ~~and proper~~ professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents. (Q) The Trustee may ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions ~~vested in the Trustee by~~ under these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think fit. Provided that the Trustee shall have exercised reasonable care in the selection of any such ~~delegate,~~ delegate the Trustee shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall ~~within a reasonable time~~ promptly after any such delegation or any renewal, extension or termination thereof give notice thereof to the relevant Issuer. (R) The Trustee may in the conduct of the trusts of these presents ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). Provided that the Trustee shall have exercised reasonable care in the selection of any such agent, the Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent. (S) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating thereto and shall not be liable for any failure to obtain any ~~person~~ licence, consent or other authority for ~~failing to request~~the execution, ~~require~~ delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or ~~receive~~ admissibility in evidence of these presents or any ~~legal opinion~~ other document relating ~~to any Notes or for checking or commenting upon the content of any such legal opinion~~thereto. (T) The Trustee ~~shall not be concerned, and need not enquire, as to whether or not~~ may certify that any ~~Notes are issued in breach~~ of the ~~Programme Limit~~conditions, events and acts set out in sub-paragraph (ii), (iii), (iv), (vi), (vii) or (viii) of Condition 10(a) (each of which conditions, events and acts shall, unless in any case the Trustee in its absolute discretion shall otherwise determine, for all the purposes of these presents be deemed to include the circumstances resulting therein and the consequences resulting therefrom) is in its opinion materially prejudicial to the interests of the Noteholders and any such certificate shall be conclusive and binding upon the Issuers, PTC, the Noteholders, the Receiptholders and the Couponholders. (U) The Trustee may call for any document and/or evidence and/or information and/or certification to be issued or given by Euroclear, Clearstream, Luxembourg as to the nominal amount of Notes represented by a Global Note or (in the case of Book Entry Notes) by an affiliate Member of Interbolsa standing to the account of any person. Any such certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification to such effect purporting to be issued or given by ~~Euroclear and/or~~ Euroclear, Clearstream, Luxembourg ~~whether pursuant to Clause 3(E) or otherwise~~ and subsequently found to be forged or not authentic. (V) Any certificate or report of the Auditors or any other person called for by or provided to the Trustee (whether or not addressed to the Trustee) in accordance with or for the purposes of these presents may be relied upon by the Trustee as sufficient evidence of the facts stated therein ~~whether or not~~ notwithstanding that such certificate or report and/or any engagement letter or other document entered into by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other person in respect thereof~~. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees~~. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in relation to any determination of the principal amount of the Notes represented by a NGN. Any such records, certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic.

Appears in 1 contract

Samples: Seventh Supplemental Trust Deed (Portugal Telecom SGPS Sa)

SUPPLEMENT TO TRUSTEE ACTS. ~~SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where~~ WHERE there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Xxx ~~0000~~0000 of Great Britain, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee Acts of England and Wales and by way of supplement thereto but subject to Clause 18 it is expressly declared as follows: (A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by ~~any of~~ the ~~relevant Obligors~~Issuers, the Guarantor, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting ~~in good faith~~ on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be ~~authentic provided that such error or lack of authenticity shall not be manifest~~authentic. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the relevant Issuer or and/or by any two Directors of ~~Cadbury Schweppes (where~~ the ~~relevant Issuer is CSF or CSI) or by any two Directors of CSF (where the relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF),~~ Guarantor and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate. (D) The Trustee shall be at liberty to hold or to place these presents and any other documents relating thereto ~~or to deposit them~~ in any part of the world with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such ~~holding or~~ deposit and may pay all sums required to be paid on account of or in respect of any such deposit. (E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the ~~relevant Issuer~~Issuers, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of ~~Default or~~ Default, any Potential Event of Default or Put Event has ~~occurred~~ happened and, until it shall have actual knowledge or express notice ~~pursuant to these presents~~ to the contrary, the Trustee shall be entitled to assume that no Event of ~~Default or~~ Default, Potential Event of Default or Put Event has ~~occurred~~ happened and that each of the ~~relevant Obligors~~ Issuers and the Guarantor is observing and performing all its obligations under these presents. (G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise ~~or non-exercise~~ of its trusts, powers, authorities and discretions under these presents (the exercise ~~or non-exercise~~ of which as between the Trustee and the Noteholders, ~~the~~ Receiptholders and Couponholders shall be conclusive and binding on the Noteholders, ~~the~~ Receiptholders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (H) The Trustee shall not be liable to any person by reason of having acted upon any Extraordinary Resolution in writing or any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed by the chair of the meeting even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the ~~resolution,~~ resolution or (in the case of an Extraordinary Resolution in writing) that not all ~~such~~ holders of Notes had signed the Extraordinary Resolution or that for any reason the resolution was not valid or binding upon such holders and the relative Receiptholders and Couponholders. (I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Note, Receipt or Coupon purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (J) Without prejudice to the right of indemnity by law given to trustees, each of the ~~relevant Obligors~~ Issuers and the Guarantor shall severally indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be ~~properly and reasonably~~ incurred by it or him in the execution or purported execution of any of its ~~or his~~ trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment. (K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder, Receiptholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by ~~any of~~ the ~~relevant Obligors~~ Issuers or the Guarantor or any other person in connection with ~~the trusts of~~ these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no Noteholder, Receiptholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the Issuers, the Guarantor as relevant ~~Issuer~~ and any rate, method and date so agreed shall be binding on the ~~relevant Obligors~~Issuers, the Guarantor, the Noteholders, the Receiptholders and the Couponholders. (N) The Trustee as between itself and the Noteholders, ~~the~~ Receiptholders and ~~the~~ Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Noteholders, ~~the~~ Receiptholders and ~~the~~ Couponholders. (O) In connection with the exercise by it of any of its trusts, powers, authorities or and discretions under these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution), the Trustee shall have regard to the general interests of the Noteholders as a class ~~but~~ and shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number) and, in particular but without limitation, shall not have regard to the consequences of any such exercise for individual Noteholders, Receiptholders or Couponholders (whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder be entitled to claim, from the ~~relevant Obligors~~Issuers, the Guarantor, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders, ~~the~~ Receiptholders or Couponholders ~~except~~ except, in the case of the Issuers and the Guarantor, to the extent already provided for in Condition 8 and/or any undertaking given in addition thereto or in substitution therefor under these presents. (P) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual ~~and proper~~ professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents. (Q) The Trustee may ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions ~~vested in the Trustee by~~ under these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think fit. Provided that the Trustee shall have exercised reasonable care in the selection of any such ~~delegate,~~ delegate the Trustee shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall ~~within a reasonable time~~ promptly after any such delegation or any renewal, extension or termination thereof give notice thereof to the relevant Issuer. (R) The Trustee may in the conduct of the trusts of these presents ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). Provided that the Trustee shall have exercised reasonable care in the selection of any such agent, the Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent. (S) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating thereto and shall not be liable for any failure to obtain any ~~person~~ licence, consent or other authority for ~~failing to request~~the execution, ~~require~~ delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or ~~receive~~ admissibility in evidence of these presents or any ~~legal opinion~~ other document relating ~~to any Notes or for checking or commenting upon the content of any such legal opinion~~thereto. (T) The Trustee ~~shall not be concerned, and need not enquire, as to whether or not~~ may certify that any ~~Notes are issued in breach~~ of the ~~Programme Limit~~conditions, events and acts set out in sub-paragraph (ii), (iii), (iv), (vi), (vii) or (viii) of Condition 10(a) (each of which conditions, events and acts shall, unless in any case the Trustee in its absolute discretion shall otherwise determine, for all the purposes of these presents be deemed to include the circumstances resulting therein and the consequences resulting therefrom) is in its opinion materially prejudicial to the interests of the Noteholders and any such certificate shall be conclusive and binding upon the Issuers, the Guarantor, the Noteholders, the Receiptholders and the Couponholders. (U) The Trustee may call for any document and/or evidence and/or information and/or certification to be issued or given by Euroclear, Clearstream, Luxembourg as to the nominal amount of Notes represented by a Global Note or (in the case of Book Entry Notes) by an affiliate Member of Interbolsa standing to the account of any person. Any such certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification to such effect purporting to be issued or given by ~~Euroclear and/or~~ Euroclear, Clearstream, Luxembourg ~~whether pursuant to Clause 3(E) or otherwise~~ and subsequently found to be forged or not authentic. (V) Any certificate or report of the Auditors or any other person called for by or provided to the Trustee (whether or not addressed to the Trustee) in accordance with or for the purposes of these presents may be relied upon by the Trustee as sufficient evidence of the facts stated therein ~~whether or not~~ notwithstanding that such certificate or report and/or any engagement letter or other document entered into by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other person in respect thereof~~. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees~~. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be issued by Euroclear or Clearstream, Luxembourg in relation to any determination of the principal amount of the Notes represented by a NGN. Any such records, certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authentic.

Appears in 1 contract

Samples: Eighth Supplemental Trust Deed (Portugal Telecom SGPS Sa)

SUPPLEMENT TO TRUSTEE ACTS. ~~SECTION 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where~~ WHERE there are any inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of these presents shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee ~~Xxx 0000~~Act 2000 of Great Britain, the provisions of these presents shall constitute a restriction or exclusion for the purposes of that Act. The Trustee shall have all the powers conferred upon trustees by the Trustee Acts and by way of supplement thereto it is expressly declared as follows: (A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert ~~whether obtained~~ appointed by ~~any of~~ the ~~relevant Obligors~~Issuer, the ~~Trustee~~ Guarantor or, the Trustee, or otherwise whether or not addressed to the Trustee, and shall not be responsible for any Liability occasioned by so acting. The Trustee may rely, without liability to the Noteholders, Receiptholders or Couponholders, on any certificate or report prepared by the Auditors pursuant to these presents whether or not addressed to the Trustee. (B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting ~~in good faith~~ on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be authentic ~~provided that~~ except where such error or lack of authenticity ~~shall not be~~ is manifest. (C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the ~~relevant~~ Issuer or any two authorised officers of the Issuer and/or by any two Directors of ~~Cadbury Schweppes (where~~ the ~~relevant Issuer is CSF~~ Guarantor or ~~CSI) or by~~ any two ~~Directors~~ authorised officers of ~~CSF (where~~ the ~~relevant Issuer is CSI) or by any two Directors of CSI (where the relevant Issuer is CSF)~~Guarantor, and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate, whether or not addressed to the Trustee. (D) The Trustee shall be at liberty to hold ~~or to place~~ these presents and any other documents relating thereto or to deposit them in any part of the world with any custodian which the Trustee shall be at liberty to appoint under these presents which is a banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such holding or deposit and may pay all sums required to be paid on account of or in respect of any such ~~deposit~~deposit PROVIDED THAT the Trustee shall not be obliged to appoint a custodian of securities payable to bearer. (E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Notes by the ~~relevant~~ Issuer, the exchange of any Global Note for another Global Note or Definitive Notes or the delivery of any Global Note or Definitive Notes to the person(s) entitled to it or them. (F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default or any Potential Event of Default has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default or Potential Event of Default has occurred and that each of the ~~relevant Obligors~~ Issuer and the Guarantor is observing and performing all its obligations under these presents. (G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, powers, authorities and discretions under these presents (the exercise or non-exercise of which as between the Trustee and the Noteholders, the Receiptholders and Couponholders shall be conclusive and binding on the Noteholders, the Receiptholders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise. (H) The Trustee shall not be liable to any person by reason of having acted upon ~~any Extraordinary Resolution in writing or~~ any Extraordinary Resolution or other resolution purporting to have been passed at any meeting of the holders of Notes of all or any Series in respect whereof minutes have been made and signed even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution, (in the case of an Extraordinary Resolution in writing) that not all such holders had signed the Extraordinary Resolution or that for any reason the resolution was not valid or binding upon such holders and the relative Receiptholders and Couponholders. (I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Note, Receipt or Coupon purporting to be such and subsequently found to be forged or not ~~authentic provided that such forgery or lack of authenticity shall not be manifest~~authentic. (J) Without prejudice to the right of indemnity by law given to trustees, each of the ~~relevant Obligors~~ Issuer and the Guarantor shall severally indemnify the Trustee and every Appointee (being an Appointee who shall have been appointed by the Trustee after prior consultation by the Trustee with the Issuer and the Guarantor and after consideration in good faith by the Trustee of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the reasonable opinion of the Trustee, such consultation and consideration was not practicable) and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be ~~properly and reasonably~~ incurred by it or him in the execution or purported execution of any of its or his trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment. (K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively. (L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder, Receiptholder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by ~~any of~~ the ~~relevant Obligors~~ Issuer, the Guarantor or any other person in connection with the trusts of these presents unless, after prior consultation with the relevant Issuer if the Trustee considers this reasonably practicable, the Trustee shall certify that failure so to disclose would be materially prejudicial to the interests of the Noteholders and ~~such disclosure is permitted by applicable law and (in the absence of such certification and permission)~~ no Noteholder, Receiptholder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information. (M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation (if practicable) with the ~~relevant~~ Issuer and any rate, method and date so agreed shall be binding on the ~~relevant Obligors~~Issuer, the Guarantor, the Noteholders, the Receiptholders and the Couponholders. (N) The Trustee as between itself and the Noteholders, the Receiptholders and the Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Noteholders, the Receiptholders and the Couponholders. (O) In connection with the exercise by it of any of its trusts, powers, authorities or discretions under these presents (including, without limitation, any modification, waiver, ~~authorisation, determination~~ authorisation or ~~substitution~~determination), the Trustee shall have regard to the ~~general~~ interests of the Noteholders as a class ~~but shall not have regard to any interests arising from circumstances particular to individual Noteholders, Receiptholders or Couponholders (whatever their number)~~ and, in particular but without limitation, shall not have regard to the consequences of ~~such~~ the exercise of its trusts, powers, authorities and discretions for individual Noteholders, Receiptholders or Couponholders ~~(whatever their number)~~ resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory ~~or any political sub-division thereof~~ and the Trustee shall not be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder be entitled to claim, from the ~~relevant Obligors~~Issuer, the ~~Trustee~~ Guarantor or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders, the Receiptholders or Couponholders except to the extent already provided for in Condition 8 7 and/or any undertaking given in addition thereto or in substitution therefor under these presents. (P) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual ~~and proper~~ professional and other charges for business properly transacted and acts properly done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time properly spent by him or his firm in connection with matters arising in connection with these presents. (Q) The Trustee may (~~upon prior notification to, and~~ after prior consultation ~~with~~with the Issuer and the Guarantor and after consideration in good faith of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the ~~relevant Issuer where~~ opinion of the ~~Trustee considers~~ Trustee, such consultation ~~to be reasonably~~ and consideration is not practicable) whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions vested in the Trustee by these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Noteholders think fit. ~~Provided~~ The Trustee shall, provided that ~~the Trustee~~ it shall have exercised reasonable care in the selection of any such delegate or sub-delegate, ~~the Trustee shall~~ not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the ~~relevant~~ Issuer. (R) The Trustee may (after prior consultation with the Issuer and the Guarantor and after consideration in good faith of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the opinion of the Trustee, such consultation and consideration is not practicable) in the conduct of the trusts of these presents ~~(upon prior notification to, and after prior consultation with, the relevant Issuer where the Trustee considers such consultation to be reasonably practicable)~~ instead of acting personally employ and pay an agent (whether being a ~~lawyer~~ lawyer, nominee or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). ~~Provided~~ The Trustee shall, provided that ~~the Trustee~~ it shall have exercised reasonable care in the selection of any such ~~agent~~agent or any custodian, ~~the Trustee shall~~ not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or any custodian or be bound to supervise the proceedings or acts of any such ~~agent~~agent or any custodian. (S) The Trustee may (after prior consultation with the Issuer and the Guarantor and after consideration in good faith of any representations made by the Issuer or the Guarantor concerning the proposed appointee except where, in the opinion of the Trustee, such consultation and consideration is not practicable) appoint and pay any person to act as a custodian or nominee on any terms in relation to such assets of the trusts constituted by these presents as the Trustee may determine, including for the purpose of depositing with a custodian these presents or any document relating to the trusts constituted by these presents and the Trustee shall not be responsible for any Liability incurred by reason of the misconduct, omission or default on the part of any person appointed by it hereunder or to be bound to supervise the proceedings or acts of such person; the Trustee is not obliged to appoint a custodian if the Trustee invests in securities payable to bearer. (T) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of these presents or any other document relating or expressed to be supplemental thereto and shall not be liable for any failure to obtain any licence, consent or other authority for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating or expressed to be supplemental thereto. (U) The Trustee shall not be responsible to any person for failing to request, require or receive any legal opinion relating to any Notes or for checking or commenting upon the content of any such legal opinion. (TV) The Trustee shall not be concerned, and need not enquire, as to whether or not any Notes are issued in breach of the Programme Limit. (UW) The Trustee shall not be ~~liable~~ obliged to take any ~~person by reason of having accepted as valid or not having rejected any document and/or evidence and/or information and/or certification purporting~~ action under this Trust Deed unless indemnified to ~~be issued or given by Euroclear and/or Clearstream, Luxembourg whether pursuant to Clause 3(E) or otherwise and subsequently found to be forged or not authentic~~its satisfaction. (VX) ~~Any certificate or report of the Auditors or~~ In relation to any ~~other person called for~~ asset held by ~~or provided to~~ it under this Trust Deed, the Trustee ~~in accordance with~~ may appoint as its nominee any banker or ~~for~~ banking company or company whose business includes the ~~purposes~~ provision of ~~these presents may be relied upon~~ nominee services believed by the Trustee as sufficient evidence of the facts stated therein whether or not such certificate or report and/or any engagement letter or other document entered into by the Trustee in connection therewith contains a monetary or other limit on the liability of the Auditors or such other person in respect thereof. However, the Trustee will have no recourse to the Auditors in respect of such certificates or reports unless the Auditors have agreed to address such certificates or reports to the Trustees. (W) The Trustee may call for and shall rely on any records, certificate or other document of or to be ~~issued by Euroclear or Clearstream, Luxembourg in relation to any determination~~ of the principal amount of Notes represented by a NGN. Any such records, certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any such records, certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not authenticgood repute.

Appears in 1 contract

Samples: Fifth Supplemental Trust Deed (Mbna Corp)

Common use of SUPPLEMENT TO TRUSTEE ACTS Clause in Contracts