Representations and Warranties of the Issuer and the Guarantors. 6.1 As a condition of the obligation of the Joint Lead Managers to subscribe and pay for or procure subscriptions and payment for the Notes, the Issuer and each Guarantor jointly and severally represents and warrants to the Joint Lead Managers as follows: (a) that (i) the audited consolidated annual financial statements of the Issuer for the financial years ended 31 December 2009 and 31 December 2010 and the interim consolidated financial statements of the Issuer for the six months ended 30 June 2010 and 30 June 2011 incorporated by reference in the Preliminary Prospectus and the Prospectus: (A) were prepared in accordance with International Financial Reporting Standards (formerly International Accounting Standards) issued by the International Accounting Standards Board (IASB) and interpretations issued by the International Financial Reporting Interpretations Committee of the IASB (together and as amended, supplemented or re-issued from time to time, and as implemented in the European Union (IFRS)), consistently applied; and (B) give a true and fair view of the financial condition of the Issuer and the group consisting of the Issuer and its Subsidiaries from time to time (the Group), as at the dates at which they were prepared and the results of the operations of the Issuer and the Group in respect of the periods for which they were prepared; and (ii) there has been no adverse change or development involving a prospective adverse change in the condition (financial or otherwise), business affairs, prospects, or results of operations of the Issuer and the Group since 31 December 2010 which is material in the context of the issue of the Notes; (b) that (i) each of the Preliminary Prospectus, at the date of its publication, and the Prospectus contains all material information (in the context of the issue of the Notes) with respect to the Issuer, the Guarantors, the Group and the Notes (including all information which, according to the particular nature of the Issuer, the Guarantor, the Group and of the Notes, is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the Issuer, the Guarantors and the Group and of the rights attaching to the Notes), (ii) the statements of fact relating to the Issuer, the Guarantors, the Group and the Notes contained in the Prospectus are, the Preliminary Prospectus, at the date of its publication, were, any supplement to the Prospectus, at the date of its publication, will be, and any other material approved in writing by the Issuer for use in the offering and sale of the Notes, at the date of publication of such material, was in every material particular true and accurate and not misleading in any material respect and that there are no other facts in relation to the Issuer, the Guarantor, the Group and the Notes the omission of which would in the context of the issue of the Notes make any statement in the Prospectus and/or the Preliminary Prospectus and/or any such other material, misleading in any material respect, (iii) the statements of intention, opinion, belief or expectation contained in the Prospectus are, the Preliminary Prospectus, at the date of its publication, were, and any supplement to the Prospectus, at the date of its publication, will be, honestly and reasonably made or held and (iv) all reasonable enquiries have been and will be made to ascertain such facts and to verify the accuracy of all such statements; (c) that the Issuer, each Guarantor and their respective Subsidiaries has been duly incorporated and is validly existing under the laws of its jurisdiction of incorporation, with full power and authority to own, lease and operate its properties and conduct its business in all material respects as described in the Preliminary Prospectus and the Prospectus and the Issuer and each Guarantor is able lawfully to execute and perform its obligations under the Notes and the Agreements; (d) that the Issuer, each Guarantor and their respective Subsidiaries (i) has all licences, permits, authorisations, consents and approvals, certificates, registrations and orders (Licences) and has made all necessary declarations and filings with all government agencies that are necessary to own or lease its properties and conduct its businesses as described in the Prospectus and (ii) is conducting its business and operations in compliance with all applicable laws, regulations and guidelines, except in each case as would not have an adverse effect on the ability of the Issuer or the relevant Guarantor to perform their respective obligations under the Agreements, or which would be material in the context of the issue and offering of the Notes (a Material Adverse Effect); (e) that the issue of the Notes (in the case of the Issuer), the giving of the Guarantees (in the case of each Guarantor) and the execution and delivery of the Agreements by the Issuer and each Guarantor have been duly authorised by the Issuer and each Guarantor and that upon due execution, issue and delivery the same will constitute legal, valid and binding obligations of the Issuer and each Guarantor, enforceable in accordance with their respective terms subject to the laws of bankruptcy and other laws affecting the rights of creditors generally; (f) that (i) the execution, delivery and performance of the Agreements by the Issuer and each Guarantor, (ii) the issue and sale of the Notes and the performance of the terms of the Notes by the Issuer and (iii) the giving of the Guarantees by each Guarantor will not infringe any law or regulation of the Republic of Italy or the United States of America or, so far as the Issuer and the Guarantors are aware without independent verification, any other law or regulation and are not contrary to the provisions of the constitutional documents of the Issuer or any Guarantor and will not result in any breach of the terms of, or constitute a default under, any material instrument, agreement or order to which the Issuer or any Guarantor is a party or by which it or its property is bound; (g) that save as disclosed in the Preliminary Prospectus and the Prospectus none of the Issuer, any Guarantor or any of their respective Subsidiaries is involved in any governmental, legal or arbitration proceedings (including any such proceedings which are pending or threatened of which the Issuer and the Guarantors are aware) which may have, or have had in the previous 12 months, a Material Adverse Effect on the financial position or profitability of the Issuer, the Guarantors or the Group; (h) that all consents and approvals of any court, government department or other regulatory body required by the Issuer or any Guarantor for (i) the execution, delivery and performance of the Agreements by the Issuer and each Guarantor, (ii) the issue and sale of the Notes and the performance of the terms of the Notes by the Issuer and (iii) the giving of the Guarantee by each Guarantor have been obtained and are unconditional and in full force and effect; (i) that upon issue the Notes will constitute direct, unconditional and (subject as described in the Conditions of the Notes) unsecured obligations of the Issuer and (subject as provided above) rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future, but, in the event of insolvency or bankruptcy, only to the extent permitted by applicable laws relating to creditors’ rights. (j) that the obligations of each Guarantor under the relevant Guarantee will constitute direct, unconditional and unsecured obligations of the relevant Guarantor and will rank pari passu with all other outstanding unsecured and unsubordinated obligations of the relevant Guarantor, present and future, but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors’ rights, all subject as provided in the Conditions; (k) that, subject as described in the Conditions of the Notes and in the Prospectus, (i) payments of principal and interest on the Notes will be made by the Issuer or the Guarantors, as the case may be, without withholding or deducting for any taxes, duties or other charges of whatever nature of the jurisdiction in which it is incorporated or any political subdivision or authority thereof or therein having power to tax and (ii) no stamp or other duty or similar tax is assessable or payable in, and no withholding or deduction for or on account of, any taxes, duties, assessments or governmental charges of whatever nature is required to be made by or within the jurisdiction in which it is incorporated or other subdivision of or authority therein or thereof having power to tax, in each case in connection with the authorisation, execution, issue, delivery of or performance of the obligations under the Agreements, the Notes in the case of the Issuer and the Guarantees (in the case of the Guarantors); (l) that no event has occurred which would constitute (after the issue of the Notes) an event of default under the Notes or which with the giving of notice or the lapse of time or other condition would (after the issue of the Notes) constitute such an event of default; (m) that no action has been taken or is contemplated by the Issuer, any Guarantor or any of their respective Subsidiaries (and it is not aware of any action having been taken or being contemplated by any other person with respect to the Issuer, any Guarantor or any of their respective Subsidiaries) which may result in the Issuer or any Guarantor being obliged, under listing requirements or other obligations to its shareholders generally, to make any information which may be material to a subscriber for the Notes available to the public prior to the Closing Date; (n) that neither the Issuer, any Guarantor nor their respective affiliates (as defined in Rule 405 under the U.S. Securities Act of 1933, as amended (the Securities Act)) nor any persons (other than the Joint Lead Managers, as to whom no representation or warranty is made) acting on its or their behalf have engaged or will engage in any directed selling efforts (as defined in Regulation S under the Securities Act) in respect of the Notes; (o) that the Issuer, its affiliates and any person (other than any Joint Lead Manager, as to whom no representation or warranty is made) acting on its or their behalf have complied with and will comply with the offering restrictions requirement of Regulation S under the Securities Act; (p) that no part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organisation or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any provision of any applicable anti-bribery or anti-corruption law or regulation enacted in any jurisdiction including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases that such Act applies to the Issuer. Each of the Issuer, any Guarantor and their respective Subsidiaries has taken reasonable measures (in any event as required by applicable law) to ensure that it is and will continue to be in compliance with all applicable current and future anti-corruption laws and regulations; (q) the operations of the Issuer, each Guarantor and their respective Subsidiaries are and have been conducted at all times in compliance with applicable financial record keeping and reporting requirements pursuant to any applicable money laundering statutes in the Republic of Italy, the United States of America and of all jurisdictions in which the Issuer, each Guarantor and their respective Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer, any Guarantor or any of their respective Subsidiaries with respect to Money Laundering Laws is pending and, to the best of the Issuer’s and each Guarantor’s knowledge, no such actions, suits or proceedings are threatened or contemplated; (r) that it has not issued and will not issue, without the prior consent of the Joint Lead Managers, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes and the Issuer authorises the Joint Lead Managers to make all appropriate disclosure in relation to stabilisation instead of the Issuer at all times in accordance with the requirements of applicable laws and regulations; (s) that the Prospectus has been published as required by the Prospectus Directive on the date of this Agreement; (t) that neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer or any of its subsidiaries are currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control, U.S. Department of Treasury; and (u) that neither the Issuer nor its affiliates will, except to the extent permitted under U.S. Treas.
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Representations and Warranties of the Issuer and the Guarantors. 6.1 As a condition of the obligation of the Joint Lead Managers to subscribe and pay for or procure subscriptions and payment for the Notes, the Issuer and each Guarantor jointly and severally represents and warrants to the Joint Lead Managers as follows:
(a) that (i) the audited consolidated annual financial statements of the Issuer for the financial years ended 31 December 2009 2008 and 31 December 2010 2009 and the interim consolidated financial statements of the Issuer for the six months ended 30 June 2010 2009 and 30 June 2011 2010 incorporated by reference in the Preliminary Prospectus and the Prospectus: (A) were prepared in accordance with International Financial Reporting Standards (formerly International Accounting Standards) issued by the International Accounting Standards Board (IASB) and interpretations issued by the International Financial Reporting Interpretations Committee of the IASB (together and as amended, supplemented or re-issued from time to time, and as implemented in the European Union (IFRS)), consistently applied; and (B) give a true and fair view of the financial condition of the Issuer and the group consisting of the Issuer and its Subsidiaries from time to time (the Group), as at the dates at which they were prepared and the results of the operations of the Issuer and the Group in respect of the periods for which they were prepared; and (ii) there has been no adverse change or development involving a prospective adverse change in the condition (financial or otherwise), business affairs, prospects, or results of operations of the Issuer and the Group since 31 December 2010 2009 which is material in the context of the issue of the Notes;
(b) that (i) each of the Preliminary Prospectus, at the date of its publication, and the Prospectus contains all material information (in the context of the issue of the Notes) with respect to the Issuer, the Guarantors, the Group and the Notes (including all information which, according to the particular nature of the Issuer, the Guarantor, the Group and of the Notes, is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the Issuer, the Guarantors and the Group and of the rights attaching to the Notes), (ii) the statements of fact relating to the Issuer, the Guarantors, the Group and the Notes contained in the Prospectus are, the Preliminary Prospectus, at the date of its publication, were, any supplement to the Prospectus, at the date of its publication, will be, and any other material approved in writing by the Issuer for use in the offering and sale of the Notes, at the date of publication of such material, was in every material particular true and accurate and not misleading in any material respect and that there are no other facts in relation to the Issuer, the Guarantor, the Group and the Notes the omission of which would in the context of the issue of the Notes make any statement in the Prospectus and/or the Preliminary Prospectus and/or any such other material, misleading in any material respect, (iii) the statements of intention, opinion, belief or expectation contained in the Prospectus are, the Preliminary Prospectus, at the date of its publication, were, and any supplement to the Prospectus, at the date of its publication, will be, honestly and reasonably made or held and (iv) all reasonable enquiries have been and will be made to ascertain such facts and to verify the accuracy of all such statements;
(c) that the Issuer, each Guarantor and their respective Subsidiaries has been duly incorporated and is validly existing under the laws of its jurisdiction of incorporation, with full power and authority to own, lease and operate its properties and conduct its business in all material respects as described in the Preliminary Prospectus and the Prospectus and the Issuer and each Guarantor is able lawfully to execute and perform its obligations under the Notes and the Agreements;
(d) that the Issuer, each Guarantor and their respective Subsidiaries (i) has all licences, permits, authorisations, consents and approvals, certificates, registrations and orders (Licences) and has made all necessary declarations and filings with all government agencies that are necessary to own or lease its properties and conduct its businesses as described in the Prospectus and (ii) is conducting its business and operations in compliance with all applicable laws, regulations and guidelines, except in each case as would not have an adverse effect on the ability of the Issuer or the relevant Guarantor to perform their respective obligations under the Agreements, or which would be material in the context of the issue and offering of the Notes (a Material Adverse Effect);
(e) that the issue of the Notes (in the case of the Issuer), the giving of the Guarantees (in the case of each Guarantor) and the execution and delivery of the Agreements by the Issuer and each Guarantor have been duly authorised by the Issuer and each Guarantor and that upon due execution, issue and delivery the same will constitute legal, valid and binding obligations of the Issuer and each Guarantor, enforceable in accordance with their respective terms subject to the laws of bankruptcy and other laws affecting the rights of creditors generally;
(f) that (i) the execution, delivery and performance of the Agreements by the Issuer and each Guarantor, (ii) the issue and sale of the Notes and the performance of the terms of the Notes by the Issuer and (iii) the giving of the Guarantees by each Guarantor will not infringe any law or regulation of the Republic of Italy or the United States of America or, so far as the Issuer and the Guarantors are aware without independent verification, any other law or regulation and are not contrary to the provisions of the constitutional documents of the Issuer or any Guarantor and will not result in any breach of the terms of, or constitute a default under, any material instrument, agreement or order to which the Issuer or any Guarantor is a party or by which it or its property is bound;
(g) that save as disclosed in the Preliminary Prospectus and the Prospectus none of the Issuer, any Guarantor or any of their respective Subsidiaries is involved in any governmental, legal or arbitration proceedings (including any such proceedings which are pending or threatened of which the Issuer and the Guarantors are aware) which may have, or have had in the previous 12 months, a Material Adverse Effect on the financial position or profitability of the Issuer, the Guarantors or the Group;
(h) that all consents and approvals of any court, government department or other regulatory body required by the Issuer or any Guarantor for (i) the execution, delivery and performance of the Agreements by the Issuer and each Guarantor, (ii) the issue and sale of the Notes and the performance of the terms of the Notes by the Issuer and (iii) the giving of the Guarantee by each Guarantor have been obtained and are unconditional and in full force and effect;
(i) that upon issue the Notes will constitute direct, unconditional and (subject as described in the Conditions of the Notes) unsecured obligations of the Issuer and (subject as provided above) rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future, but, in the event of insolvency or bankruptcy, only to the extent permitted by applicable laws relating to creditors’ rights.
(j) that the obligations of each Guarantor under the relevant Guarantee will constitute direct, unconditional and unsecured obligations of the relevant Guarantor and will rank pari passu with all other outstanding unsecured and unsubordinated obligations of the relevant Guarantor, present and future, but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors’ rights, all subject as provided in the Conditions;
(k) that, subject as described in the Conditions of the Notes and in the Prospectus, (i) payments of principal and interest on the Notes will be made by the Issuer or the Guarantors, as the case may be, without withholding or deducting for any taxes, duties or other charges of whatever nature of the jurisdiction in which it is incorporated or any political subdivision or authority thereof or therein having power to tax and (ii) no stamp or other duty or similar tax is assessable or payable in, and no withholding or deduction for or on account of, any taxes, duties, assessments or governmental charges of whatever nature is required to be made by or within the jurisdiction in which it is incorporated or other subdivision of or authority therein or thereof having power to tax, in each case in connection with the authorisation, execution, issue, delivery of or performance of the obligations under the Agreements, the Notes in the case of the Issuer and the Guarantees (in the case of the Guarantors);
(l) that no event has occurred which would constitute (after the issue of the Notes) an event of default under the Notes or which with the giving of notice or the lapse of time or other condition would (after the issue of the Notes) constitute such an event of default;
(m) that no action has been taken or is contemplated by the Issuer, any Guarantor or any of their respective Subsidiaries (and it is not aware of any action having been taken or being contemplated by any other person with respect to the Issuer, any Guarantor or any of their respective Subsidiaries) which may result in the Issuer or any Guarantor being obliged, under listing requirements or other obligations to its shareholders generally, to make any information which may be material to a subscriber for the Notes available to the public prior to the Closing Date;
(n) that neither the Issuer, any Guarantor nor their respective affiliates (as defined in Rule 405 under the U.S. Securities Act of 1933, as amended (the Securities Act)) nor any persons (other than the Joint Lead Managers, as to whom no representation or warranty is made) acting on its or their behalf have engaged or will engage in any directed selling efforts (as defined in Regulation S under the Securities Act) in respect of the Notes;
(o) that the Issuer, its affiliates and any person (other than any Joint Lead Manager, as to whom no representation or warranty is made) acting on its or their behalf have complied with and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(p) that no part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organisation or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any provision of any applicable anti-bribery or anti-corruption law or regulation enacted in any jurisdiction including, without limitation, the United States Foreign Corrupt Practices Act of 1977▇▇▇ ▇▇▇▇, as amended, assuming in all cases that such Act applies to the Issuer. Each of the Issuer, any Guarantor and their respective Subsidiaries has taken reasonable measures (in any event as required by applicable law) to ensure that it is and will continue to be in compliance with all applicable current and future anti-corruption laws and regulations;
(q) the operations of the Issuer, each Guarantor and their respective Subsidiaries are and have been conducted at all times in compliance with applicable financial record keeping and reporting requirements pursuant to any applicable money laundering statutes in the Republic of Italy, the United States of America and of all jurisdictions in which the Issuer, each Guarantor and their respective Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer, any Guarantor or any of their respective Subsidiaries with respect to Money Laundering Laws is pending and, to the best of the Issuer’s and each Guarantor’s knowledge, no such actions, suits or proceedings are threatened or contemplated;
(r) that it has not issued and will not issue, without the prior consent of the Joint Lead Managers, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes and the Issuer authorises BNP Paribas on behalf of the Joint Lead Managers to make all appropriate disclosure in relation to stabilisation instead of the Issuer at all times in accordance with the requirements of applicable laws and regulations;; and
(s) that the Prospectus has been published as required by the Prospectus Directive on the date of this Agreement;.
(t) that neither 6.2 Without prejudice to the other rights or remedies of the Joint Lead Managers, the Issuer nor any of its subsidiaries nor, and each Guarantor jointly and severally undertakes to the knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer each Joint Lead Manager that if that Joint Lead Manager or any of its subsidiaries are currently subject affiliates, directors, officers, employees, agents or controlling persons (within the meaning of Section 15 of the Securities Act and Section 20 of the U.S. Securities Exchange Act of 1934, as amended) (together with the Joint Lead Managers, each a Relevant Party) incurs any liability, damages, cost, loss or expense (including, without limitation, legal fees, costs and expenses) (a Loss) arising out of, in connection with, or based on any actual or alleged breach of the representations, warranties and undertakings contained in, or made by the Issuer and/or the Guarantors under, this Agreement (on the date of this Agreement or on any date when it is deemed to be repeated); the Issuer or, as the case may be, the relevant Guarantor shall pay to that Joint Lead Manager on demand an amount equal to such Loss. No Joint Lead Manager shall have any duty or obligation, whether as fiduciary or trustee for any Relevant Party or otherwise, to recover any such payment or to account to any U.S. sanctions administered other person for any amounts paid to it under this subclause 6.2.
6.3 In case any action shall be brought against any Relevant Party in respect of which recovery may be sought from the Issuer and/or the Guarantors, as the case may be, under this clause 6, the relevant Joint Lead Manager shall promptly notify the Issuer and/or the relevant Guarantor, as the case may be, in writing but failure to do so will not relieve the Issuer or the relevant Guarantor from any liability under this Agreement.
6.4 The Issuer and each Guarantor undertakes with the Joint Lead Managers that it will forthwith notify the Joint Lead Managers of any change affecting any of the above representations and warranties (assuming and deeming them to have been repeated at the time of the change) at any time before payment is made to the Issuer on the Closing Date and that it will take those steps which may be reasonably requested by the Office Joint Lead Managers to remedy and/or publicise the change or event (including, if requested, the publication of Foreign Assets Control, U.S. Department a supplement to the Prospectus). Upon any breach of Treasury; and
(u) that neither any of the above representations and warranties or any change rendering any of the above representations and warranties inaccurate or any such event coming to the notice of the Joint Lead Managers before payment being made to the Issuer nor its affiliates willon the Closing Date, except the Joint Lead Managers shall be entitled (but not bound) by notice to the extent permitted Issuer and the Guarantors to elect to treat such breach or change or event as (except as otherwise specifically provided) releasing and discharging the Joint Lead Managers from their obligations under U.S. Treasthis Agreement.
6.5 The above representations, warranties and indemnity shall continue in full force and effect in relation to each Joint Lead Manager notwithstanding its actual or constructive knowledge with respect to any of the matters referred to in the representations and warranties, the completion of the arrangements set out in this Agreement for the subscription and issue of the Notes or the termination of this Agreement pursuant to subclaus
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