Each issue. Where an agreement has been made pursuant to clause 2 to issue and purchase Notes, prior to the Agreement Date for such Notes, ENEL shall provide to the relevant Dealer or the Lead Manager, as the case may be, a copy of the resolution of the Board of Directors of the relevant Issuer authorising the issue of such Notes and, where ENEL is the relevant Issuer, a resolution of the shareholders of ENEL authorising the issue of such Notes, in each case with a certified English translation thereof. The copies of such resolutions shall be certified on behalf of ENEL as being true and correct copies and of their being in full force and effect, not having been revoked or amended since the respective dates they were passed. The production of such certified copy resolutions, and where applicable, certified English translations of them, shall be a further condition precedent to those set out in clause 3.1 and 3.2 above, together with delivery of a legal opinion from legal advisers (approved by the Dealer(s)) in Italy and Luxembourg (where the relevant Issuer is ENEL S.A.), in such form and with such content as the Dealers may reasonably require, in respect of the due authorisation by the relevant Issuer and ENEL (if not the relevant Issuer) of the issue of such Notes. The obligations of a Dealer under any agreement for the issue and purchase of Notes made under clause 2 are conditional on: (a) there having been, as at the proposed Issue Date, no material adverse change or any development involving a prospective material adverse change from that set forth in the Offering Circular as at the relevant Agreement Date in the condition (financial or otherwise) of the relevant Issuer or ENEL (if not the relevant Issuer) or ENEL and its consolidated subsidiaries taken as a whole nor the occurrence of any event making untrue or incorrect any of the representations and warranties contained in clause 4; (b) there being no outstanding breach of any of the obligations of either Obligor under this Agreement, the Agency Agreement, either Deed of Covenant, the Deed Poll, the Guarantee or any Notes which has not been expressly waived by the relevant Dealer on or prior to the proposed Issue Date; (c) subject to clause 13, the aggregate nominal amount (or, in the case of Notes denominated in a currency other than euro, the euro equivalent (determined as provided in clause 3.6) of the aggregate nominal amount) of the Notes to be issued, when added to the aggregate nominal amount (or, in the case of Notes denominated in a currency other than euro, the euro equivalent (as so determined) of the aggregate nominal amount) of all Notes outstanding (as defined in the Agency Agreement) on the proposed Issue Date (excluding for this purpose Notes due to be redeemed on the Issue Date) not exceeding €25,000,000,000; (d) in the case of Notes which are intended to be listed, the relevant authority or authorities having agreed to list the Notes, subject only to the issue of the relevant Notes; (e) no meeting of the holders of Notes (or any of them) having been duly convened but not yet held or, if held but adjourned, the adjourned meeting having not been held and neither Obligor being aware of any circumstances which are likely to lead to the convening of such a meeting; (f) there having been, between the Agreement Date and the Issue Date for the Notes, in the opinion of the relevant Dealer, no such change in national or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the opinion of the relevant Dealer, be likely to either (i) prejudice materially the sale by the Dealer of the Notes proposed to be issued or where relevant, the dealing in such Notes in the secondary market or (ii) materially change the circumstances prevailing at the Agreement Date; (g) there being in full force and effect all governmental or regulatory resolutions, approvals or consents required for the relevant Issuer to issue the Notes and ENEL (if not the relevant Issuer) to guarantee the Notes pursuant to the terms of the Guarantee on the proposed Issue Date and for the relevant Issuer and ENEL (if not the relevant Issuer) to fulfil their respective obligations under the Notes and the Guarantee and ENEL having delivered to the relevant Dealer certified copies of those resolutions, approvals or consents and, where applicable, certified English translations of them; (h) there having been, between the Agreement Date and the Issue Date, no downgrading in the rating of any debt of either Obligor by Standard & Poor’s or Moody’s or the placing on Creditwatch with negative implications or similar publication of formal review by the relevant rating agency; (i) the forms of the Final Terms, the applicable Global Notes, Notes in definitive form and Receipts, Coupons or Talons (each as applicable) in relation to the relevant Tranche and the relevant settlement procedures having been agreed by the relevant Issuer, the relevant Dealer and the Principal Paying Agent and, if applicable, the Registrar; (j) the relevant currency being accepted for settlement by Euroclear and Clearstream, Luxembourg and, where relevant, DTC; (k) in the case of Notes being sold pursuant to and in reliance on Rule 144A, the Notes being eligible for clearance and settlement through DTC and being designated PORTAL-eligible securities in accordance with the rules and regulations of the National Association of Securities Dealers, Inc.; (l) the delivery to the Registrar as custodian of the Regulation S Global Note and/or the Rule 144A Global Note representing the relevant Registered Notes and the delivery to the common depositary or, as the case may be, the common safekeeper of the Temporary Bearer Global Note and/or the Permanent Bearer Global Note representing the relevant Bearer Notes, in each case as provided in the Agency Agreement; (m) any calculations or determinations which are required by the relevant Conditions to have been made prior to the Issue Date having been duly made; (n) in the case of Notes which are intended to be listed on a European Economic Area Stock Exchange or offered to the public in a European Economic Area Member State in circumstances which require the publication of a prospectus under the Prospectus Directive: (i) the denomination of the Notes being €1,000 (or its equivalent in any other currency) or more; (ii) either (A) there being no significant new factor, material mistake or inaccuracy relating to the information included in the Offering Circular which is capable of affecting the assessment of the Notes or (B) if there is such a significant new factor, material mistake or inaccuracy, a supplement to the Offering Circular having been published in accordance with the Prospectus Directive pursuant to clause 5.2; (iii) the Offering Circular having been approved as a base prospectus by the IFSRA and the applicable Final Terms having been published in accordance with the Prospectus Directive; and (o) in the case of Notes which are intended to be listed on a European Economic Area Stock Exchange (other than the Irish Stock Exchange) or offered to the public in a European Economic Area Member State (other than Ireland) in circumstances which require the publication of a prospectus under the Prospectus Directive, the competent authority of each relevant European Economic Area Member State having been notified in accordance with the procedures set out in Articles 17 and 18 of the Prospectus Directive and all requirements under those Articles having been satisfied. In the event that any of the above conditions is not satisfied, the relevant Dealer shall be entitled (but not bound) by notice to the relevant Issuer and ENEL (if not the relevant Issuer) to be released and discharged from its obligations under the agreement reached under clause 2.
Appears in 1 contract
Each issue. Where an agreement The obligation of a Relevant Dealer to subscribe for any Notes which it has been made agreed to subscribe for pursuant to clause Clause 2 to issue and purchase Notes, prior to is conditional upon the Agreement Date for such Notes, ENEL shall provide to the relevant Dealer or the Lead Manager, as the case may be, a copy of the resolution of following:-
(1) the Board of Directors of the relevant Issuer authorising the having duly resolved to issue of such Notes and, where ENEL is the relevant Notes;
(2) the Issuer's representations and warranties set out in this Agreement being true, a resolution of accurate, correct and complied with in all material respects on the shareholders of ENEL authorising Agreement Date and the proposed Issue Date (in each case as if such representations and warranties were repeated on each such date with reference to the then existing circumstances taking into account the issue of such Notes) and the performance, in on or prior to each case with a certified English translation thereof. The copies of such resolutions shall be certified on behalf of ENEL as being true and correct copies and of their being in full force and effectdate, not having been revoked or amended since the respective dates they were passed. The production of such certified copy resolutions, and where applicable, certified English translations of them, shall be a further condition precedent to those set out in clause 3.1 and 3.2 above, together with delivery of a legal opinion from legal advisers (approved by the Dealer(s)) in Italy and Luxembourg Issuer of its covenants, agreements or obligations under this Agreement to be performed on or prior to each such date (where the relevant Issuer is ENEL S.A.), in such form and with such content as the Dealers other than any obligations that may reasonably require, in respect of the due authorisation have been waived by the relevant Issuer Relevant Dealer and ENEL (if which waiver continues in effect) except to the extent to which failure to do so would not be material in the relevant Issuer) context of the issue of the Notes;
(3) (in respect of such Notes. The obligations Notes which are to be listed) all consents and the approval in-principle of a Dealer under the relevant Stock Exchange having been obtained and on terms and conditions acceptable to the Relevant Dealer, such consents and approval being valid and continuing to be in force and effect until the Issue Date and all conditions attached to such consents and approval being complied with by the Issue Date (save for any agreement for conditions to be complied with after the issue and purchase of Notes made under clause 2 are conditional on:Issue Date which shall be complied with as soon as practicable thereafter);
(a) there having been, as at the proposed Issue Date, no material adverse change change, or any development involving a prospective adverse change, in the financial condition, business or results of operations of the Issuer or the Group, taken as a whole, which is material adverse change in the context of the issue and offering of the Notes from that set forth in the Offering Circular audited consolidated accounts of the Issuer and its subsidiaries for the year ended 31st December, 2000 contained in the Information Memorandum or, if available, the most recent audited consolidated accounts or, as at the relevant case may be, unaudited half yearly results of the Group delivered to the Dealers pursuant to Clause 4(A)(13) except as may be disclosed in the Information Memorandum or in any public announcement of the Issuer made prior to the Agreement Date or as disclosed to the Relevant Dealer prior to the Agreement Date; and
(b) there having been delivered to the Relevant Dealer on the proposed Issue Date a certificate (substantially in the condition (financial or otherwiseform set out in Appendix 6) dated the proposed Issue Date, signed by a duly authorised officer of the relevant Issuer, stating that, to the best of his knowledge and belief after making due enquiries, (i) since the date of the most recent audited consolidated accounts or, as the case may be, unaudited half yearly results of the Group delivered to the Dealers pursuant to Clause 4(A)(13), except as may be disclosed in the Information Memorandum or in any public announcement of the Issuer made prior to the Agreement Date or as disclosed to the Relevant Dealer prior to the Agreement Date, there has been no adverse change, or any development involving a prospective adverse change, in the financial condition, business or results of operations of the Issuer or ENEL (if not the relevant Issuer) or ENEL and its consolidated subsidiaries Group, taken as a whole nor whole, which is material in the occurrence of any event making untrue or incorrect any context of the issue and offering of the Notes, (ii) the Issuer's representations and warranties contained set out in clause 4this Agreement are true, accurate, correct and complied with in all material respects on the proposed Issue Date (as if such representations and warranties were repeated on the proposed Issue Date with reference to the then existing circumstances taking into account the issue of such Notes) and (iii) the Issuer has performed all of its covenants, agreements or obligations under this Agreement to be performed on or prior to the proposed Issue Date (other than any obligations that may have been waived by the Relevant Dealer and which waiver continues in effect) except to the extent to which failure to do so would not be material in the context of the issue of the Notes;
(b5) there being no outstanding breach in any material respect of any of the obligations of either Obligor the Issuer under this Agreement, the Agency Agreement, either Deed of Covenant, Notes or the Deed Poll, the Guarantee or any Notes other Contracts which has not been expressly waived by the relevant Relevant Dealer on or prior to the proposed Issue Date;
(c6) subject to clause 13, the aggregate nominal principal amount (or, in the case of Notes denominated in a currency other than euro, the euro equivalent (determined as provided in clause 3.6) of the aggregate nominal amount) of the Notes to be issued, when added to the aggregate nominal principal amount (or, in the case of Notes denominated in a currency other than euro, the euro equivalent (as so determined) of the aggregate nominal amount) of all Notes outstanding (as defined in the Agency AgreementTrust Deed) on the proposed Issue Date (excluding for this purpose Notes due to be redeemed on the Issue Date) , not exceeding €25,000,000,000the Programme Limit;
(d) in the case of Notes which are intended to be listed, the relevant authority or authorities having agreed to list the Notes, subject only to the issue of the relevant Notes;
(e7) no meeting of the holders of Notes (or any of them) to consider matters which would in the reasonable opinion of the Relevant Dealer be considered to be material in the context of the issue of the Notes having been duly convened but not yet held or, if held but adjourned, the adjourned meeting having not been held and neither Obligor the Issuer not being aware of any circumstances which are likely to would lead to the convening of such a meeting;
(f) 8) there not having been, between the Agreement Date and the Issue Date for such Notes:-
(a) any introduction or prospective introduction of, or any change or prospective change in, or in the Notesinterpretation or application of, any legislation, statute, regulation, order, policy, directive, request or guideline (whether or not having the force of law) by the Monetary Authority of Singapore, the Securities Industry Council, the SGX-ST or any other governmental or regulatory body in Singapore; or
(b) any material adverse change or prospective material adverse change in monetary, political (including, but not limited to, changes by reason of military action), financial (including, but not limited to, stock market conditions, currency exchange conditions in any of the financial markets and interest rates) or economic conditions in Singapore or internationally (including changes or developments in stock, bond, money and interest rate markets) or the occurrence of any combination of any such changes, crises or developments, in either case, as would in the opinion of the relevant Dealer, no such change Relevant Dealer (exercised in national or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the opinion of the relevant Dealer, be likely to either good faith):-
(i) materially and adversely prejudice materially or affect the sale by the Dealer success of the Notes proposed to be issued placement, issue, offer, sale or where relevant, the dealing in such Notes distribution (whether in the primary or secondary market or markets) of the Notes; or
(ii) materially change and adversely affect the circumstances prevailing at listing of the Agreement DateNotes (where applicable); or
(iii) materially and adversely affect the business or financial position of the Issuer or the Group;
(g) there being in full force and effect all governmental or regulatory resolutions, approvals or consents required for the relevant Issuer to issue the Notes and ENEL (if not the relevant Issuer) to guarantee the Notes pursuant to the terms of the Guarantee on the proposed Issue Date and for the relevant Issuer and ENEL (if not the relevant Issuer) to fulfil their respective obligations under the Notes and the Guarantee and ENEL having delivered to the relevant Dealer certified copies of those resolutions, approvals or consents and, where applicable, certified English translations of them;
(h) there having been, between the Agreement Date and the Issue Date, no downgrading in the rating of any debt of either Obligor by Standard & Poor’s or Moody’s or the placing on Creditwatch with negative implications or similar publication of formal review by the relevant rating agency;
(i9) the forms of the Final TermsPricing Supplement, the applicable Temporary Global NotesNote, the Permanent Global Note and the Definitive Notes in definitive form and Receipts, Coupons or Talons (each as applicable) in relation to the relevant Tranche and the relevant settlement procedures having been agreed by the relevant Issuer, the relevant Dealer Relevant Dealer, the Issuing and Paying Agent and the Principal Paying Agent and, if applicableTrustee (in respect of the Temporary Global Note, the RegistrarPermanent Global Note and the Definitive Notes only) on or prior to the proposed Issue Date;
(j) the relevant currency being accepted for settlement by Euroclear and Clearstream, Luxembourg and, where relevant, DTC;
(k) in the case of Notes being sold pursuant to and in reliance on Rule 144A, the Notes being eligible for clearance and settlement through DTC and being designated PORTAL-eligible securities in accordance with the rules and regulations of the National Association of Securities Dealers, Inc.;
(l) the delivery to the Registrar as custodian of the Regulation S Global Note and/or the Rule 144A Global Note representing the relevant Registered Notes and the delivery to the common depositary or, as the case may be, the common safekeeper of the Temporary Bearer Global Note and/or the Permanent Bearer Global Note representing the relevant Bearer Notes, in each case as provided in the Agency Agreement;
(m10) any calculations or determinations which are required by the relevant Conditions to have been made prior to the Issue Date having been duly made;
(n) in the case of Notes which are intended to be listed on a European Economic Area Stock Exchange or offered to the public in a European Economic Area Member State in circumstances which require the publication of a prospectus under the Prospectus Directive:
(i11) the denomination provisions of the Notes sub-Clause (C) below not being €1,000 (or its equivalent in any other currency) or morebreached thereby;
(ii) either (A12) there being no significant new factorinfringement in any respect of any law, material mistake order, rule, regulation, directive, policy or inaccuracy relating to request (whether or not having the information included in force of law) promulgated or issued by any legislative, executive, judicial or regulatory body, including, but not limited to, the Offering Circular which is capable SGX-ST, the Monetary Authority of affecting Singapore and the assessment Registry of Companies as a result of the issue of the Notes of that Series or (B) if there is such a significant new factorthe carrying out of any transaction contemplated by, material mistake or inaccuracy, a supplement to the Offering Circular having been published in accordance compliance with the Prospectus Directive pursuant to clause 5.2terms of, the Contracts;
(iii13) the Offering Circular Form 30B having been approved as a base prospectus lodged with the Registrar of Companies and Businesses, the Information Memorandum having been lodged with the Registrar of Companies and Businesses for the purpose of Section 106D of the Companies Act, Chapter 50 of Singapore (the "Companies Act"), and all acts being done in order to invoke the applicable exemptions under Sections 106C, 106D and/or 106E of the Companies Act having been duly performed and all requirements in connection therewith having been duly complied with;
(14) the Minister for Finance not having revoked, pursuant to Section 106J of the Companies Act, the exemption invoked by the IFSRA Issuer under Section 106C or 106D of the Companies Act in connection with the issue of the Notes nor any exemption under Division 5A of Part IV of the Companies Act relied on or to be relied on by the Relevant Dealer in connection with the issue of the Notes and the applicable Final Terms having been published in accordance with sale of the Prospectus DirectiveNotes by the Relevant Dealer; and
(o15) in all requirements of the case Monetary Authority of Notes which are intended to be listed on a European Economic Area Stock Exchange (other than the Irish Stock Exchange) or offered to the public in a European Economic Area Member State (other than Ireland) in circumstances which require the publication of a prospectus under the Prospectus DirectiveSingapore, the competent SGX-ST, the Registry of Companies and Businesses and any other relevant authority of each relevant European Economic Area Member State having been notified in accordance connection with the procedures set out in Articles 17 and 18 issue of the Prospectus Directive Notes and all requirements under those Articles having been satisfied. In the event that (where applicable) listing or any of the above conditions is not satisfied, transactions contemplated by this Agreement or the relevant Dealer shall be entitled (but not bound) Contracts being fully complied with by notice to the relevant Issuer and ENEL (if not the relevant Issuer) to be released and discharged from its obligations under the agreement reached under clause 2such time as stipulated in such requirements.
Appears in 1 contract
Sources: Programme Agreement (St Assembly Test Services LTD)