Exhibit 67
OLIMPIA S.P.A.
AND
BANCA MONTE DEI PASCHI DI SIENA S.P.A.
FINANCING CONTRACT
for Euro 600,000,000
signed on June 28, 2005
TABLE OF CONTENTS
1. ADDENDA, DEFINITIONS AND REFERENCES....................................................................1
2. FINANCING..............................................................................................9
3. PURPOSE...............................................................................................10
4. CONDITIONS PRECEDENT..................................................................................10
5. USE OF THE FINANCING..................................................................................11
6. REIMBURSEMENT ON THE DUE DATE.........................................................................12
7. PREPAYMENT, CANCELLATION AND COLLATERAL...............................................................13
8. INTEREST..............................................................................................17
9. INTEREST PERIODS......................................................................................19
10. ALTERNATIVE RATES..................................................................................19
11. TAXES..............................................................................................20
12. INCREASED COSTS....................................................................................22
13. MITIGATION.........................................................................................23
14. PAYMENTS...........................................................................................23
15. REPRESENTATIONS....................................................................................24
16. INFORMATION COVENANTS..............................................................................25
17. FINANCIAL COVENANTS................................................................................27
18. GENERAL COMMITMENTS................................................................................27
19. EVENTS OF DEFAULT..................................................................................28
20. PROOF AND CALCULATIONS.............................................................................31
21. COMMISSIONS........................................................................................32
22. INDEMNITIES AND BREAK COSTS........................................................................32
23. HEDGING............................................................................................33
24. COSTS AND EXPENSES.................................................................................33
25. AMENDMENTS AND WAIVERS.............................................................................33
26. TRANSFERS AND ASSIGNMENTS..........................................................................34
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27. LENDER'S OBLIGATION................................................................................34
28. CONFIDENTIALITY....................................................................................35
29. SEVERABILITY.......................................................................................36
30. COMMUNICATIONS.....................................................................................36
31. LANGUAGE...........................................................................................37
32. GOVERNING LAW......................................................................................37
33. CHOICE OF JURISDICTION.............................................................................37
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BY THIS CONTRACT, on June 28, 2005
BETWEEN
(1) OLIMPIA S.p.A., a company incorporated in Italy, with registered office
in Milan, Xxxxx Xxxxx 000, with capital of Euro 4,630,233,510.00 tax
code and registration number in the Register of Companies of Milan
under No. 03232190961 (the "Company");
(2) Banca Monte dei Paschi di Siena S.p.A., an Italian company with
registered office in Siena, Xxxxxx Xxxxxxxxx, 0 capital Euro
1,935,272,832.00 fully paid-in, Tax Code No. 00884060526 and
registration number with the Register of Companies of Siena No.
9782, ("MPS");
IT IS AGREED AND DECIDED as follows:
1. ADDENDA, DEFINITIONS AND REFERENCES
1.1 Addenda
The Addenda are an integral and substantial part of this contract
1.2 Definitions
In this contract, the following expressions will have the meanings
given to them below:
"Disbursement Agency" means the branch of the Bank through which the
Bank disposes the Drawdowns pursuant to this contract.
"TI Shares" means common shares issued by Telecom Italia S.p.A. with
voting right.
"Bank" means MPS and all its assignees, particular or universal, or
beneficiary.
"Reference Banks" means the Bank, S. Paolo IMI, Societe Generale -
Branch of Milan and XX Xxxxxx Xxxxx Bank - Branch of Milan and any
other bank or financial institution named as such by the Bank pursuant
to this contract.
"Original Balance Sheets" means the certified annual balance sheet of
the Company for the fiscal year ended December 31, 2004.
"Event of Default" means each of the facts and circumstances described
in Article 19 (Events of Default) of this contract.
"Conformity Certificate" means a certificate substantially in the form
of Addendum C (Model of Conformity Certificate) indicating the
calculations of the Financial covenants.
"Release Certificate" means a certificate signed and delivered by the
Company substantially in the form in Addendum E (Model of Certificate
of Release).
"Authorized Assignee" means:
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(a) in the case of Pirelli & C. S.p.A. or any Authorized Assignee
of Pirelli & C. S.p.A., any Subsidiary of Pirelli & C. S.p.A.;
and
(b) in the case of Edizione Holding S.p.A. or any Authorized
Assignee of Edizione Holding S.p.A., any Subsidiary of
Edizione Holding S.p.A.
"Related company" means a Subsidiary or Parent Company of a person or
of any other Subsidiary of such Parent Company.
"Cash" means money in cash, including the money deposited in a bank
checking account, which is not subject to a Security Interest, with the
exception of a Security Interest in the sense of a Guarantee Contract.
"Guarantee Contracts" means all guarantee contracts listed in Addendum
D (Guarantee Contracts ) and any other guarantee contract requested to
be stipulated pursuant to this contract.
"Parent Company" means, in reference to a company, a person who owns
directly or indirectly more than 50 percent of the voting shares of
capital in the shareholders' meeting of such company.
"Subsidiary" means a company controlled directly or indirectly by a
person or which holds directly or indirectly more than 50 percent of
the voting shares of stock in the shareholders' meeting of such
company.
"Break Costs" means the amount the Bank has the right to receive under
Article 22.2 as compensation if any part of a Drawdown or the Drawdown
itself is prepaid or reimbursed on a date other than the Due Date.
"Calculation Date" means the first Business Day of each month following
the Stipulation Date.
"Closing Date" means the date in which the first Drawdown of the
Financing is disbursed.
"Disbursement Date" indicates, in connection with every Drawdown:
(a) before the disbursement, the date indicated by the Company in
the Drawdown Request;
(b) after the disbursement, the date the amount of the Drawdown
has been paid to the Company; or,
(c) in the event of missed disbursement, no date.
"Due Date" means the last day of the Interest Period concerning each
Drawdown.
"Final Due Date" means the date falling 7 (seven) years from the
Stipulation Date.
"Stipulation Date" means the date this contract was signed.
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"TARGET Date" indicates a day in which the "Trans-European Automated
Real-time Gross Settlement Express Transfer" is open for settlement of
payments in euro.
"Cash Deposits" means the time deposits of cash for a period not
exceeding 90 days with a bank or financial institution with short-term
rating equal to at least A2 of Standard and Poor's Corporation or P2
granted by Xxxxx'x Investors Service, Inc. and for which the Company is
the exclusive beneficiary, provided the cash is not subject to a
Security Interest, with the exception of a Security Interest pursuant
to a Guarantee Contract.
"Repeating Representations" indicates the declarations that must be
repeated pursuant to Clause 15.8 (Renewal of the Declarations).
"Security Interest" indicates any mortgage, pledge, lien or encumbrance
or other real Security Interest guaranteeing the obligations of any
person.
"Edizione Holding S.p.A." means Edizione Holding S.p.A. with registered
office at Xxx Xxxxxxxx 00, 00000 Xxxxxxx, Xxxxx.
"Material Adverse Effect" means a Material Adverse Effect on the
financial position of the Company which will cause the Company to be
unable to perform its payment obligations pursuant to this contract.
"Cash Equivalent" indicates Cash, Cash Deposits and/or Marketable
Securities.
"EURIBOR" indicates, concerning an Interest Payment of a Drawdown or
another amount owed:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available in connection with the Interest
Period for that Drawdown or amount owed, the arithmetic mean
(rounded up to four decimals after the point) of the rates,
provided to the Bank at its request, offered by the Reference
Banks to primary banks in the European interbank market,
at 11:00 AM (Milan time) on the Rate Fixation Day of the offer for
deposits in Euro for a period similar to said Interest Period.
"Financing" means the opening of "revolving" credit in Euro granted by
the Bank to the Company pursuant to this contract within the limits of
the Maximum Amount.
"GAAP" indicates the account in principles issued in Italy by the
Xxxxxxxxx Nazionale dei Dottori Commercialisti e dei Ragionieri
(Accountants Association) or in the absence thereof, the accounting
principles issued by the International Accounting Standards Board or
any other accounting principle generally admitted in Italy.
"Collateral" are the TI Shares, the TI Convertible Bonds, the TI
Warrants and/or the Cash Equivalents given in guarantee pursuant to the
Guarantee Contracts.
"Day of Rate Fixing" means the second TARGET Date prior to the first
day of an Interest Period.
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"Negotiation Day" means a date on which the Stock Exchange of Milan is
open for trading.
"Business Day" means any day (excluding Saturday and Sunday) in which
the banks operating in Milan are open for business.
"Holinvest" means Holinvest S.p.A. with registered office at Xxxxx
Xxxxxxxxxx 00, 00000 Xxxxxxx, Xxxxx.
"Hopa" means Hopa S.p.A. with registered office at Xxxxx Xxxxxxxxxx 00,
00000 Xxxxxxx, Xxxxx.
"Financing Commitment" means the commitment of the Bank to grant
financing within the limits of the Maximum Amount.
"Maximum Amount" means Euro 600,000,000.00 (six hundred million/00), or
the amount possibly reduced pursuant to Article 7.
"Substitution Tax" means the substitution tax referred to in art. 15 et
seq. of the Presidential Decree No. 601 of September 29, 1973.
"Financial Indebtedness" means, avoiding duplications in calculations
and excluding the shareholders' loans, any indebtedness of the Company
in reference to:
(a) borrowed money;
(b) any amount raised pursuant to the issue of bonds, notes,
debenture, loan stocks;
(c) the amount of any liability in respecyt of any lease or hire
purchase contract which, according to GAAP, would be treated
as a financial or capital lease;
(d) any derivative transaction not entered into in connection with
hedging strategy of the Company (and when calculating the
value of any derivative transaction only the marked to market
value shall be taken into account);
(e) receivables sold or discounted (to the extent that they are
assigned or discounted on a non-recourse basis);
(f) any amount raised under any other transaction required by GAAP
to be shown as borrowing in the annual balance sheet of the
Company; and
(g) financial Collateral.
"Margin" indicates the annual rate determined pursuant to Article 8.3
(Margin).
"TI Convertible Bonds" means debt securities issued by Telecom Italia
S.p.A. and listed on the Stock Exchange of Milan, freely convertible to
common shares of Telecom Italia, S.p.A.
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"Tax Payment" means a payment by the Company to the Bank concerning a
Tax Withholding or under any reimbursement by the Company in reference
to a Rate pursuant to this contract.
"Party" means a party to this contract.
"Olimpia's Shareholders Agreements" means the Shareholders Agreements
signed between the Company, Pirelli S.p.A. (now Pirelli & Co. S.p.A.),
Edizione Finance International S.A., Edizione Holding S.p.A., Banca
Intesa, S.p.A., UniCredito Italiano S.p.A. and Olimpia dated February
21, 2003 as subsequently amended and expanded on January 23, 2004 and
December 7, 2004, including any amendments made before the final due
date.
"Interest Period" means the period of calculation and maturing of
interest, as determined pursuant to article 9 of this contract.
"Drawdown Period" means the period between the stipulation date and the
final due date.
"Pirelli & C. S.p.A." means Pirelli & C. S.p.A. with registered office
at xxx X. Xxxxx 00, 00000 Xxxxx, Xxxxx.
"Net Financial Position" means the amount indicated as "posizione
finanziaria xxxxx" in the annual balance sheet of the company,
determined according to GAAP valid in December, 2004.
"Drawdown Request" means the communication of the company to the bank
in the form in Addendum B (Model of Drawdown Request) by which the
company requests the disbursement of a drawdown pursuant to this
Contract.
"Authorized Representative" means each subject authorized to validly
sign this contract and the drawdown requests on behalf of the company,
found in the list in point 3, Addendum A, as possibly completed and/or
modified from time to time by written communication from the company to
the bank. The inclusion in this list, or such subsequent communications
signed by a subject who, in turn, is an Authorized Representative, will
release the bank from any obligation to verify the powers of such new
Authorized Representative and the bank may validly rely on the
legitimacy of such subject to bind the company pursuant to this
contract.
"Tax Withholding" means a deduction or withholding for, or related to,
a Rate in connection with a payment pursuant to this contract.
"Demerger" means a Demerger or direct assignment to or acquisition by
Hopa or one of Hopa's related Companies of a percentage of assets and
liabilities of the Company equal to the total stake held by Hopa and/or
by any of Hopa's Subsidiaries in the Company at the time, as indicated
in Olimpia's Shareholders Agreements.
"Screen Rate" means for Euribor the annual percentage determined at
11:00 AM (Central European Time) by the Euribor Panel Steering
Committee, and seen on the ATICFREX06 Reuters page, and, if this page
is not available, on the Telerate Screen on page 248. If the pertinent
pages are replaced or the service stops being available, the Bank (by
agreement with the Company, acting reasonably) may indicate another
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or another service to see the appropriate rate. If no page or service
shows an appropriate rate or if an agreement is not reached within 3
Business Days, the rate will be defined by the Reference Banks.
"Participating Member States" means a Member State of the European
Community, which adopts or has adopted the Euro as its legal currency
according to the rules of the European Community for the Economic and
Monetary Unit.
"Rate" means any rate, tax (except for the company's income tax) or
other charge or withholding of a similar nature (including any
surcharge or interest payable in connection with any missed payment or
delay in payment thereof).
"Telecom Italia S.p.A." means Telecom Italia S.p.A. with registered
office in Xxxxxx Xxxxxx 0, 00000 Xxxxx, Xxxxx.
"Marketable Securities" means debt securities in Euro issued or
guaranteed by the government or by the central banks of the United
States, Japan, Germany, United Kingdom, Italy, Canada or France,
convertible in any other form of securities, with rating of no less
than AA (according to Standard & Poor's Rating Services) or equivalent,
with a maturity not exceeding 12 months and which are not subject to
any Security Interest except for a Security Interest pursuant to a
Guarantee Contract.
"Total ongoing Drawdowns" indicates at any time the sum of all ongoing
Drawdowns.
"Drawdown" means each disbursement of the credit granted by the
Financing, which the Company may request in the Drawdown Period by the
message indicated in this contract.
"Rollover Drawdown" means one or several Drawdowns:
(a) granted or to be granted the same day in which a Drawdown
maturing must be reimbursed;
(b) the total amount equal to or lower than the amount of the
maturing Drawdown; and
(c) granted or to be granted in order to refinance a maturing
Drawdown.
"Value of the Collateral" indicates the total value of the TI Shares,
of the TI Convertible Bonds, of the TI Warrants and of the Cash
Equivalents granted as guarantee from time to time in favor of the Bank
pursuant to the terms of a Guarantee Contract. This total value will be
calculated as follows:
(a) the value of the TI Shares will be determined monthly on the
Calculation Date of the Bank with reference to the average of
the official price of the Telecom Italia S.p.A. common shares
on the Stock Exchange of Milan in the preceding 25 consecutive
Trading Days;
(b) the value of the TI Convertible Bonds will be determined
monthly on the Calculation Date of the Bank with reference to
the average of the official price
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of the TI Convertible Bonds on the Stock Exchange of Milan
in the preceding 25 consecutive Business Days;
(c) the value of the TI Warrants will be determined monthly on the
Calculation Date of the Bank with reference to the average of
the official price of the TI Warrants on the Stock Exchange of
Milan in the preceding 25 consecutive Business Days;
(d) the value of the Marketable Securities will be determined
monthly on the Calculation Date of the Bank with reference to
the average of the official price of each Negotiable Security
on the relevant Italian market in the preceding 25 consecutive
Business Days; and
(e) the value of the Cash and Cash Deposits will be calculated
with reference to the amount of the capital line of Cash and
Cash Deposits plus interest matured, calculated in all events
as of the Calculation Date,
it is, however, understood that (i) in the case of a suspension of the
trading of a security ("Suspended Security") not exceeding seven
Trading Days or Business Days, as the case may be, and consequently of
the official price for the previous 25 consecutive Trading Days, or in
the case of Paragraph (d) above, Business Days, is not available, the
value of the Suspended Security in connection with the respective
Calculation Date will be calculated with reference to the last 25
Trading Days or Business Days (as the case may be) in which the
Suspended Security was not suspended from trading; or (ii) if the
suspension of the trading of a Suspended Security exceeds seven Trading
Days or Business Days, as the case may be, the value of the Suspended
Security will be calculated by an independent expert appointed by the
Bank after consultation with the Company.
"VTL" means on any date the percentage determined by the following
formula:
VG
_________ x 100
TU
where:
VG: means the Value of the Collateral posted in favor of the Bank
pursuant to the Guarantee Contracts on that date, taking into account
any addition or release of a Guarantee according to each Guarantee
Contract as of said date; and TU: The Total Drawdowns existing on that
date also taking into account any Drawdown to be disbursed on that date
and any reimbursement and prepayment to be made on that date with the
understanding that, according to the Release Coverage Agreement (as
defined in Article 27 of this Contract) the TU will be equal to the
Total ongoing Drawdowns net of the Transferred Debt (as defined in the
aforementioned Article).
"TI Warrant" means options for the acquisition or subscription of
common shares of Telecom Italia S.p.A. listed on the Stock Exchange of
Milan.
1.3 References
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(a) In this contract, unless a contrary intent is obvious, every
reference to:
(i) an Article, a Paragraph, a Subparagraph or Addendum
must be understood a reference to an article,
paragraph or addendum of this contract;
(ii) authorization must be understood as a reference to an
authorization, consensus, permission, approval,
decision, license, exemption or registration;
(iii) goods must mean those referring to property, income
and rights considered as goods pursuant to GAAP;
(iv) a consultation obligation must be understood as an
obligation to inform and discuss, but in any case it
will not imply that any decision to be made after the
consultation is subject to approval or agreement;
(v) A contract act or document must be understood as a
reference to a contract act or document as
subsequently amended or expanded;
(vi) indebtedness must be understood as an unconditional
obligation (both assumed as a main obligation and as
guarantee) to pay or reimburse money following a
loan;
(vii) an ongoing Event of Default must be understood as a
reference to a Event of Default that has not been
remedied or concerning which no waiver has been made.
(viii) A law or regulation, regulatory provision must be
understood as a reference to such law or regulation,
regulatory provision as subsequently amended or
expanded;
(ix) an hour of the day must be understood as a reference
to Milan time;
(x) a Party or any other person must be understood as a
reference to their successors, beneficiaries and
assigns as well;
(xi) a person must be understood as reference to an
individual, firm, company, artificial person,
association or entity without juridical personality
(including an association, trust administration,
joint venture or consortium), government, State,
agency, organization or other entity with or without
separate legal personality;
(xii) a regulation must be understood as a reference to any
regulation, directive, from any government,
intergovernmental or supranational entity, agency,
department or regulatory office or another authority
or organization;
(xiii) requisites for client identification must be
understood as a reference to the identification
controls the Bank must do in order to respect its
obligations pursuant to any law or regulation
applicable for the identification of a person who is
(or is about to become) its client; and
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(xiv) a currency must be understood as a reference to the
currency at the time constituting legal tender in the
country in question.
(b) Except if the intent to the contrary is obvious, the reference
to a month, months, is a reference to a period starting on a
date in a calendar month and ends on the numerically
correspondent date of the following calendar month or the
calendar month in which it must end, with the following
exceptions:
(i) if the numerically corresponding date is not a
Business Day, the period will be considered ended on
the subsequent Business Day of the same month (if
there is one) or the preceding Business Day (if there
is none);
(ii) if in the month in question there is no numerically
corresponding date, the period will be considered
ended the last Business Day of said month; and
(c) notwithstanding the above paragraph, a period starting on the
last Business Day of a month will end on the last Business Day
of the subsequent month or calendar month in which it must
end, as the case may be.
(d) Unless the intent to the contrary is obvious:
(i) the reference to a Party will not include such Party
if it has stopped being a Party to this contract; and
(ii) any obligation of the Company pursuant to this
contract, which is not a payment obligation, will
remain valid as long as payment obligations pursuant
to this contract for the Company subsist or may
arise.
(e) The headings of the Articles were included exclusively for
easy consultation, but must not be understood as valid
provisions and must not be taken into consideration for the
interpretation hereof.
2. FINANCING
2.1 Financing
Subject to the terms and conditions hereof the Bank grants to the
Company, which accepts, the financing in the total Maximum Amount in
capital line, equal to the Maximum Amount to be drawdown during the
drawdown period in the terms and with the limits hereunder.
2.2 Additional Drawdowns
Any amount of a Drawdown reimbursed:
(a) in advance, pursuant to Article 7.3 (Mandatory Prepayment -
Change of Control), but only to the extent that (i) the
prepayment obligation has appeared as a consequence of one of
the events indicated in Paragraphs 7.3 (a)(i), 7.3 (a)(ii) and
7.3 (a)(iii); and (ii) such event was remedied and (iii) the
remedy was adopted within three months from the event in
question; or
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(b) early pursuant to Article 7.4 (Mandatory Prepayment for
Insufficient Guarantee); or
(c) early pursuant to Article 7.5 (Voluntary Prepayment); or
(d) the last day of its Interest Period - except to the extent
that it was refinanced by a Rollover Drawdown or as a
consequence of a Mandatory Prepayment pursuant to Clause 7.1
(Mandatory Prepayment - Illegality)(Bank), 7.2 (Mandatory
Prepayment - Illegality) (Company) or 7.3 (Mandatory
Prepayment - Change of Control) (except under the
aforementioned circumstances);
can be granted again on loan (subject to the conditions precedent of
the drawdown indicated in this contract and provided the amount granted
again on loan does not exceed the amount prepaid or with Mandatory
Prepayment in full or in part at any time until the Final Due Date,
inclusive (depending on the Interest Period selected of one, two, three
or six months or any other period agreed upon between the Company and
the Bank, but always provided such period does not end after the Final
Due Date).
3. PURPOSE
3.1 Purpose
The proceeds arising from the drawdown of the Financing will be used
exclusively: (i) to refinance the indebtedness of the Company or, at
the choice of the Company, (ii) for the regular activity of the
Company.
3.2 Absence of control obligations
The Bank is not obligated to control or verify that the use of the
Financing by the Company is as indicated in Article 3.1 above.
4. CONDITIONS PRECEDENT
4.1 Conditions precedent for the validity of the contract
Without prejudice to the content of the subsequent paragraphs of this
Article 4, the validity of this contract is conditioned, besides the
absence of Events of Default, by the communication to the Company by
the Bank of having received all the documents indicated in Addendum A
(Conditions precedent - Documents) in form and content considered
reasonably satisfactory for the Bank itself. As soon as it considers
itself satisfied with the documents received, the Bank must timely
communicate it to the Company.
4.2 Conditions precedent concerning the first Drawdown
Without prejudice to art. 4.1 above, the obligation of the Bank to
disburse the first Drawdown conditioned by the occurrence of the
following circumstances:
(a) the Guarantee Contracts listed in Addendum D (Guarantee
Contracts) must be signed by the Closing Date (inclusive);
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(b) the VTL on the Disbursement Date of the first Drawdown is
equal to or higher than 100 percent; and
(c) the Bank has received a Drawdown Request, duly filled out in
the terms and conditions indicated in Article 5 below.
4.3 Conditions precedent concerning Drawdowns to be disbursed after
October 6, 2007
Without prejudice to Article 4.1 above, the obligation of the Bank to
disburse each Drawdown to be disbursed after October 6, 2007
(inclusive) is also conditioned on the occurrence of the following
circumstances:
(a) the Guarantee Contracts listed in Addendum D (Guarantee
Contracts) are valid and efficient;
(b) the VTL on the Disbursement Date of such Drawdown is equal to
or higher than 105 percent; and
(c) the Bank has received a Drawdown Request, duly filled out in
the terms and conditions indicated in Article 5 below.
4.4 Additional conditions precedent
Except as indicated in Articles 4.1, 4.2 and 4.3 above, the obligation
of the Bank to disburse any Drawdown is also conditioned on the
occurrence of the following circumstances:
(a) both on the date of the Drawdown Request and on the
Disbursement Date of the Drawdown;
(i) each of the declarations and Collateral issued
pursuant to Article 15 hereof is correct in its
substantial aspects; and
(ii) there is no ongoing substantial event of default, nor
can there be an Event of Default as a consequence of
disbursement of the Drawdown.
4.5 Maximum number of Drawdowns
The Company may not file a Drawdown Request if as a consequence of such
Drawdown Request, 15 or more Drawdowns are ongoing.
5. USE OF THE FINANCING
5.1 Delivery of the Drawdown Requests
(a) The Company may use the Financing in several installments
during the Drawdown period by sending to the Bank a Drawdown
request duly filled out and signed by an Authorized
Representative.
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(b) Except if otherwise agreed with the Bank, each Drawdown
Request must be received by the Bank at least one Business Day
before (by 3:00 PM) the Rate Fixation Date.
(c) Each Drawdown Request, after being received by the Bank, must
be considered irrevocable.
5.2 Preparation of Drawdown Request
A Drawdown Request will be considered duly filled out only provided
that:
(a) the Disbursement Date indicated in the Drawdown Request is a
Business Day which:
(i) in the case of a Drawdown other than a Rollover
Drawdown, falls within the applicable Drawdown Period
or as granted in Article 2.2 (Additional Drawdowns)
and;
(ii) in the case of a Rollover Drawdown, it falls before
the Final Due Date;
(b) the amount of the Drawdown requested is:
(i) equal as a minimum to Euro 10,000,000.00 (ten
million/00); or
(ii) equal to the maximum unused amount available of the
Financing as of the Indicated Disbursement Date; or
(iii) any other amount agreed upon with the Bank; and
(c) the Interest Period proposed is according to that established
hereunder.
The Company may request the disbursement of a single Drawdown in each
Drawdown Request.
6. REIMBURSEMENT ON THE DUE DATE
6.1 The Company must reimburse in full each Drawdown, together with the
respective matured interested on the respective Due Date.
6.2 Subject to the other terms hereof, the amounts of the Drawdowns
reimbursed as indicated in the previous Paragraph may be subsequently
reused by the company according to the terms and conditions hereof.
6.3 Without any prejudice to the obligation of the Company to reimburse the
entire amount of each Drawdown on the respective Due Date, on each date
a Rollover Drawdown is used by the Company, the amount of the Drawdown
to be reimbursed will be offset against the amount to be used by the
Company on that date so that the amount actually to be reimbursed by
the Company or, as the case may be, the amount the Bank must actually
disburse to the Company will be equal to the difference.
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6.4 All amounts to be reimbursed in connection with the financing must be
reimbursed in full on the final due date and, as of that date, they may
not be reused again.
7. PREPAYMENT, CANCELLATION AND COLLATERAL
7.1 Mandatory Prepayment - Illegality (Bank)
(a) The Bank must promptly inform the Company if it becomes
illegal for the Bank (under regulatory provisions, regulations
or orders of authorities binding for the Bank) to comply with
its obligations hereunder.
(b) After the communication in the Paragraph above:
(i) the Company must reimburse or prepay to the Bank the
Entire ongoing Drawdowns on the date indicated in
Paragraph 7.1(c) below; and
(ii) the Financing will be immediately and fully
cancelled.
(c) The reimbursement or prepayment date of each drawdown will be
as follows:
(i) the last day of the Interest Period concerning the
Drawdown; or
(ii) if prior, and in the absence of agreements to the
contrary between the Company and the Bank, the date
specified by the Bank in the communication indicated
in Paragraph 7.1(a) above, which date however may not
precede on the last day of any period of grace
mandated by regulations or provisions.
7.2 Mandatory Prepayment - Illegality (Company)
In the event that:
(a) it becomes illegal for the Company to comply with any of its
obligations hereunder; or
(b) this contract is not efficient because of its terms and
conditions or the Company declares in writing that this
contract is inefficient for any reason;
the Total Ongoing Drawdowns will become immediately payable and the
Company must reimburse the Ongoing Drawdowns in full before its
compliance with any of its obligations hereunder becomes illegal or
this contract becomes inefficient. The Financing will therefore be
immediately cancelled in full.
7.3 Mandatory Prepayment - Change of Control
(a) For the purposes of this Article 7.3:
a change of control takes place if:
(i) Pirelli & C. S.p.A. and/or Edizione Holding S.p.A.
and/or any Authorized Assignee stops possessing
directly or indirectly voting
13
shares representing at least 50 percent plus one
share of the capital of the Company; or
(ii) the Company stops being one of the three main holders
of the common shares of Telecom Italia S.p.A.; or
(iii) Pirelli & C. S.p.A. and/or any Authorized Assignee
stops possessing directly or indirectly voting common
shares representing at least 30 percent of the
capital of the Company,
except if the change of control consists of or is the result
of a merger in which the resulting entity is:
(i) the Company following a merger with a company
controlled 100% by the Company or any other company
(provided Pirelli & C. S.p.A. and/or Edizione Holding
S.p.A. and/or any Authorized Assignee own voting
shares representing together at least 50 percent plus
one share of the capital of the Company) or with any
shareholder company of the Company which, on the
Stipulation Date, is not a financial institution, or
with Telecom Italia S.p.A.; or
(ii) any shareholder of the company which, on the
Stipulation Date is not a financial institution; or
(iii) Telecom Italia S.p.A.; or
(iv) any company controlled by one or several of the
persons indicated in points (i), (ii) or (iii) above,
together or individual and, in this context, control
of a company is understood as possessing voting
shares representing more than 50 percent of its
capital.
(b) Immediately after finding out about a change of control the
Company must communicate it to the Bank.
(c) Following receipt of a communication pursuant to Paragraph (b)
above, the Bank may request by written communication the
prepayment of the Entire Ongoing Drawdowns, together with the
interest matured and any other amount owed pursuant to this
contract which becomes payable on the date that falls two
business dates after the date of receipt of the communication
by the Company (or on any subsequent dates specified by the
Bank in the communication), and:
(A)
(1) to the extent that the communication refers
to any of the cases indicated in points (i),
(ii), (iii) or (iv) of the previous
Paragraph 7.3(a) (a "Relevant Case"), the
Financing will be completely cancelled
irrevocably and automatically as of the date
falling three months after the date of the
Relevant Case, to the extent that, on such
date, the circumstances indicated in point
(i), (ii) or (iii)
14
(as the case may be) in Paragraph 7.3(a)
above are still in progress; and
(2) in all other circumstances, the Financing
will be completely and irrevocably
cancelled; and
(B) All Ongoing Drawdowns together with the interest
matured and allother amounts matured in connection
with this contract become payable on the date of
receipt by the Company of the communication from the
Bank (or in any subsequent date specified by the Bank
in the communication).
7.4 Mandatory Prepayment for VTL requirements
(a) From October 5, 2007 to the Final Due Date, on any Calculation
Date, the Bank will promptly notify the Company of the prices
to be used for the calculation of the Value of the Guarantee
in connection with said Calculation Date and the effective VTL
on said Calculation Date.
(b) From October 5, 2007 to the Final Due Date, if on any
Calculation Date the VTL is equal to or lower than 105
percent, the Company must communicate, within five Business
Days from receipt of the communication referred to in
Paragraph 7.4 (a) above, whether it intends:
(i) to constitute as guarantee an additional Guarantee in
favor of the Bank by signing and perfecting the
appropriate guarantee documents in a form and content
reasonably satisfactory for the Bank; or
(ii) prepay the Total of the Ongoing Drawdowns, in full or
in part, in any case in an amount sufficient to
assure that the VTL is equal to at least 125 percent
on the date of the constitution of the additional
Guarantee or the Total of the Ongoing Drawdowns are
prepaid in full or in part.
(c) The amounts reimbursed pursuant to point (ii) Paragraph 7.4(b)
above must not be less than Euro 10,000,000.00.
(d) The Company must execute the option chosen pursuant to point
(ii) Paragraph 7.4(b) above within seven Business Days from
the day the option is communicated to the Bank.
(e) If the Company:
(i) omits to send the communication to the Bank within
five Business Days as required in Paragraph 7.4(b)
above, or
(ii) communicates to the Bank that it does not wish to
exercise any of the options in Paragraph 7.4(b); or
(iii) having chosen to exercise one of the options in
Paragraph 7.4(b), it then omits to execute it within
seven Business Days;
15
the Company must reimburse immediately and in full the Total Ongoing
Drawdowns, together with the matured interest and all other amounts
matured hereunder.
7.5 Voluntary Prepayment
(a) With notice to the Bank of not less than five Business Days
(or a shorter period as may be agreed with the Bank), the
Company may prepay any Drawdown, in full or in part, at any
time.
(b) The amounts reimbursed pursuant to Paragraph 7.5 (a) above
must not be less than Euro 10,000,000.00 (ten million/00).
7.6 Automatic Cancellation
The Financial Commitment of the Bank will be automatically cancelled on the
Final Due Date.
7.7 Voluntary Cancellation
(a) The Company may, with notice to the Bank of no less than five
Business Days (or a shorter period as agreed with the Bank),
cancel in full or in part the Financial Commitment within the
limits of the unused amounts.
(b) The partial cancellation of the Financial Commitment must be
equal to a minimum amount of Euro 10,000,000.00 (ten million).
(c) Following the cancellation referred to in Paragraph 7.7 (a),
(b) and (c) above, the Financial Commitment will be reduced by
an amount corresponding to the portion cancelled.
7.8 Optional Reduction of Collateral
At any time, if the VTL calculated is at least equal to 130 percent,
the Company may at its exclusive discretion request to release part of
the Collateral by sending to the Bank a Release Certificate, provided
that, following such release, the VTL remains at least equal to 125
percent. The Bank will immediately make the requested release,
effective as of the date the Bank takes note of the receipt of the
Release Certificate (such taking note must be communicated to the
Company within 5 (five) Business Days from receipt of the Release
Certificate and must specify that as of the date of said taking note,
the Collateral so released are deemed fully available to the Company).
7.9 Optional Additional Collateral
The Company, at its discretion, may place in guarantee additional
Collateral by signing and perfecting the appropriate guarantee
documents.
7.10 Involuntary Prepayment and Cancellation
(a) If the Company has or would have received a request to pay to
the Bank:
(i) a Tax Payment; or
16
(ii) an additional cost as defined in Article 12,
pending such obligation, the Company may send communication to
the Bank asking to prepay the total ongoing Drawdowns and to
cancel the Financial Commitment.
(b) After the communication in point (i) of Paragraph 7.10(a)
above:
(i) the Company must reimburse or prepay the Total
ongoing Drawdowns on the date specified in Paragraph
7.10(c) below; and
(ii) the Bank's Financial Commitment will be cancelled
immediately.
(c) The date of the reimbursement or prepayment will be the
following:
(i) the last day of the Interest Period for each
Drawdown; or
(ii) if prior, the date specified by the Company in its
communication.
7.11 Renewal of the Granting of the Loans
Any Drawdown reimbursed by voluntary prepayment may be used again
pursuant to this contract.
7.12 Miscellaneous
(a) Any communication of prepayment and/or cancellation in
connection with this contract is irrevocable and must specify
the respective date and the respective Drawdown.
(b) All prepayments related to this contract must be made together
with the matured interest on the amount prepaid. No
compensation or penalty will be owed for such prepayment,
except for the Break Costs. Break Costs are not owed in the
event of reimbursement of a Drawdown on the Respective Due
Date.
(c) The Bank may consent to a shorter notice period for a
voluntary prepayment or voluntary cancellation.
(d) No portion of the Financial commitment cancelled pursuant to
this contract may be then reinstated.
8. INTEREST
8.1 Calculation of the Interest
The interest rate applied to its Drawdown for the respective Drawdown
Period will be equal to the annual percentage rate arising from the sum
of:
(a) the applicable Margin (as indicated in Article 8.3 below
(Margin); and
(b) the applicable EURIBOR.
17
The interest will be calculated on the actual number of days included
in each Interest Period, based on a year of 365 days.
8.2 Payment of Interest
Except as otherwise provided in this contract, the Company must pay the
interest matured on every Drawdown granted to it on the respective Due
Date and, if the Interest Period exceeds 6 (six) months on the dates
falling at intervals of 6 (six) months from the first day of the
Interest Period.
8.3 Margin
(a) The Margin for every Drawdown will be determined based on the
following table, in reference to the Disbursement Date for
such Drawdown:
Period
------
From the Stipulation Date to October 4, 2007
From October 5, 2007 to the Final Due Date
8.4 Late Interest
(a) In the event of failure to pay punctually and in full the
amounts owed for capital, interest or otherwise, at the
request of the Bank, the Company must pay late interest on the
amounts owed from the due date to the date of the actual
payment.
(b) Late interest will be equal to the interest rate from time to
time applicable as if the amount unpaid on the due date
constituted a Drawdown during the period of missed
reimbursement, plus one hundred basis points per year. For
this purpose, the Bank (operating reasonably) may:
(i) select successive interest periods ("Late Interest
Period") up to 3 (three) months; and
(ii) determine the appropriate Rate Fixation Day for such
Late Interest Period.
(c) Regardless of the Paragraph 8.4(b) above, if the amount
matured is an amount of capital of a Drawdown and is owed and
payable before the last day of its respective Interest Period:
(i) the first Late Interest Period of said amount matured
will consist of the non-matured portion of such
Interest Period; and
(ii) the interest rate on the matured amount for the
aforementioned first Late Interest Period will be
equal to one hundred basis points per year plus the
rate payable on that date on the Drawdown in
question.
18
After the maturity of the first Late Interest Period for said matured
amount, the rate on the matured amount will be calculated as indicated
in Paragraph 8.4(b) above.
(d) The interest not paid on a matured amount may not be
capitalized with such matured amount at the end of each of its
Late Interest Periods, but the matured interest will be
immediately payable.
8.5 Notice of Interest Rates
The Bank must promptly communicate to the Company the establishment of
an interest rate in connection with this contract.
8.6 Rate Cap
In order to avoid doubts, regardless of any other provisions contained
herein, if at any time the interest rate indicated as payable in
connection with this contract constitutes a violation of Italian usury
law, the interest rate payable in connection with this contract will be
capped to the maximum amount payable pursuant to Italian usury law.
9. INTEREST PERIODS
9.1 Selection
(a) Each Drawdown has a single Interest Period.
(b) The Company must choose the Interest Period of a Drawdown in
the respective Drawdown Request.
(c) Each Interest Period of a Drawdown will have a term of one,
two, three or six months, or any other period agreed between
the Company and the Bank.
(d) The Company may choose a different term than those indicated
in point (c) above in connection with the first Drawdown.
9.2 No Extension after the Final Due Date
If an Interest Period matures after the Final Due Date, such Interest
Period will be abbreviated in order to mature on the Final Due Date.
9.3 Communication of the duration
The Bank must timely communicate to the Company the duration of every
Interest Period and late Interest Period.
10. ALTERNATIVE RATES
10.1 Lack of communication of a rate by a Reference Bank
If EURIBOR must be calculated with reference to the Reference Bank, but
the Reference Bank fails to communicate a rate by 12:00 noon (Milan
time) in a Rate-
19
Fixing Day, the applicable EURIBOR will be calculated based on the
indications below, based on the rates of the other Reference Banks.
10.2 Market Disruption
(a) In this Clause, each of the events indicated below constitutes
an event of Market Disruption:
(i) EURIBOR must be calculated with reference to the
Reference Banks but none of them or only one
Reference Bank communicates a rate by 12:00 noon
(Milan time) on the Rate-Fixing Day; or
(ii) on the Rate Fixing Day, the Bank communicates to the
Company that the cost to obtain the corresponding
deposits in the European interbank market is higher
than EURIBOR for the respective Interest Period.
(b) The Bank must immediately inform the Company in the occurrence
of a Market Disruption event.
(c) After the communication referred to in point (b) above, the
interest rate for the Drawdown in question for the respective
Interest Period will be equal to the sum:
(i) of the applicable Margin; and
(ii) of the rate communicated by the Bank as soon as
possible and in all events before the interest
concerning such Interest Period becomes payable,
which will be equal to the annual percentage rate of
the cost incurred by the Bank in order to find funds
to finance the Drawdown in the interbank market.
10.3 Alternative Base for the Interest Rate
(a) In the occurrence of a Market Disruption event, and if the
Bank or the Company requests, the Company and the Bank must
negotiate for a period not exceeding 30 days in order to agree
on an alternative base to determine the interest rate for the
Drawdown in question.
(b) Any agreed alternative base will be binding for the Parties.
(c) If during the period referred to in point (a) above no
agreement is reached and the Market Disruption event is still
ongoing, the Bank (operating reasonably and in good faith)
will communicate its cost in order to find funds to finance
the Drawdown in question in the interbank market, as described
in Article 10.2 for each Interest Period, and the component in
the calculation of the interest rate determined pursuant to
Article 10.2 (c)(ii) for such Interest Period will be equal to
the interest rate so communicated by the Bank.
11. TAXES
11.1 General
20
In this Article 11, Tax Credit means a credit for any Tax or any
exemption or pardon or refund of any Tax (or the respective
reimbursement).
11.2 Higher Charges
(a) The Company must make all payments pursuant to this contract
without any Tax Withholding, to the exclusion of the case in
which a Tax Withholding is required by law.
(b) If the Company knows that it must make a Tax Withholding (or
of the existence of a change in rate or base of calculation of
a Tax Withholding), it must inform the Bank in a timely
fashion.
(c) If the law requires a Tax Withholding to be made by the
Company or by the Bank, the amount of the payment owed by the
Company - to the extent that it is owed to the Bank - will be
recalculated so that the amount actually paid, net of the tax
withholding, is equal to the sum the Bank would have received
in payment had the Tax Withholding not been made.
(d) If the Company must make a Tax Withholding, such Tax
Withholding must be the lowest allowed by law or by the treaty
against double taxation applicable, and the Company must make
any payment required in connection with the aforementioned Tax
Withholding by the deadline required by law.
(e) The Bank must provide all documents requested and collaborate
with the Company in order to complete any applicable
procedural formality necessary to the Company in order to make
the payments without Tax Deductions or with the minimum Tax
Withholding allowed by law or by the applicable treaty against
double taxation.
11.3 Tax Refunds
(a) Except as indicated below, the Company will reimburse to the
Bank an amount equal to the reasonable cost proven by the Bank
by sending the respective documentation incurred by it in
connection with any Tax related to this contract, provided the
Bank and the Bank's Disbursing Branch are and will be tax
residents in Italy.
(b) If the Bank intends to file a request for refund in connection
with point (a) above, it must inform the Company immediately
and in any case within one month from the time it becomes
aware of the respective cost. The Bank will not have right to
payment of any amount pursuant to point (a) above for a period
prior to the date falling one month before the date the Bank
communicated the cost to the Company.
11.4 Tax Credit
Whenever the Company makes a Tax Payment and the Bank, operating
reasonably and in good faith, establishes that a Tax Credit is
imputable directly or indirectly on said Payment and, in the event that
the bank benefited from such Tax Credit, the Bank must pay to the
Company an amount which in its opinion, operating reasonably and in
good faith, will leave it (after such payment) in the same tax position
in which it
21
would have been had the Company not made the aforementioned Tax
Payment. When the Bank would have used a Tax Credit to offset a tax
owed, it must provide to the Company the details of its calculation of
the Tax Credit recovered pursuant to Article 13.2 (Management of the
Activity of the Bank).
11.5 Tax Stamps
The Company must pay and reimburse to the Bank all expenses for tax
stamp, registrations or other similar taxes (including in order to
avoid any doubt, the Replacement Tax) owed in connection with the
subscription, performance or forced performance of this contract, to
the exclusion of any Tax owed in connection with the Value Added Tax
(a) Any amount owed by the Company pursuant to this contract is
understood net of any value applicable or other similar Tax
owed in connection with said amount. If a Tax were applicable,
the Company must pay to the Bank (in addition to and at the
same time with the payment of said amount) a sum equal to the
sum of the Tax.
(b) If the Company must reimburse pursuant to this Contract any
costs or expenses to the Bank, the Company must also reimburse
to the Bank any value added tax paid by the Bank in connection
with such costs and expenses, but only to the extent that the
Bank is not entitled by law or regulation to a credit or
reimbursement of such Tax from the appropriate tax authority.
12. INCREASED COSTS
12.1 Increased Costs
In case of modifications made in the tax system of the funds of the
Bank, or should the current treatment of interbank deposits be changed
from the viewpoint of the reserve obligations and/or their tax system,
with a clear and direct increase in cost for the Bank, the Bank will
have the right to request compensation from the Company. In this case,
the Bank will fax the Company, within thirty days from the time it
becomes aware, the new rate conditions at which it is possible to
continue the financing, providing a certificate containing reasonable
detailed proof of the determination of the amount to be compensated and
the Company, within thirty days from said notice, must send the Bank
its own notice of agreement with the new conditions or opt out from
this contract, in the latter case being obligated to prepay the
financing, without penalty or interruption costs, at the end of the
aforementioned term of thirty days from the notice of the Bank. If the
aforementioned term of thirty days falls after the end of the interest
period in which the notice of the Bank was sent, the valid rate at the
time of the notice will be adopted until the day of reimbursement.
Whenever the Company does not answer the notice of the Bank, the
determination of the new rate applicable to the financing will be
deemed finally accepted and therefore the financing will continue under
the new rate conditions communicated by the Bank.
12.2 Exceptions
22
The Company need not make any payment concerning an additional cost as
defined in Article 12.1 above to the extent that the latter (i) is
offset pursuant to another Article hereof or would be offset had it not
constituted an exception to said Article; or (ii) it was communicated
by the Bank more than 3 (three) months after the date the Bank became
aware thereof.
13. MITIGATION
13.1 Mitigation
(a) The Bank, after consulting the Company, must adopt reasonable
measures to mitigate any circumstance that occurs and which
has or may have the consequence that:
(i) the Company must pay to the Bank a Tax Payment or an
Additional Cost;
(ii) the Bank may exercise a prepayment and/or
cancellation right pursuant to this contract due to
illegal operation; or
(iii) the Bank must incur a cost in order to respect the
minimum reserve requirements of the Central European
Bank;
(iv) it becomes illegal for the Company to perform any of
its obligations hereunder, including the assignment
of its rights and obligations arising from this
contract to a Subsidiary or the change of its
Disbursement Branch.
(b) The above Paragraph 13.1(a) does not limit in any manner the
obligations of the Company hereunder.
(c) The Company must reimburse to the Bank all costs and expenses
reasonably incurred by the Bank as a consequence of any
measure adopted pursuant to this Article 13.1.
(d) The Bank is not obligated to take any measure pursuant to this
Article 13.1 if, in its judgment, it would cause damage to
itself by do doing.
13.2 Management of the Activity of the Bank
No provision hereof will interfere with the right of the Bank to manage
its own affairs (tax related or otherwise) in the manner it deems
appropriate.
14. PAYMENTS
14.1 Payments
(a) All payments that must be made pursuant to this contract must
be made in Euro.
(b) In partial derogation to Paragraph 14.1(a) above, the payments
of taxes, fees, costs and expenses must be made in the
currency in which they were incurred.
23
14.2 Offset prohibition
All payments made by the Company hereunder must be made without any
deduction or reduction by offset, except as indicated in clause 12(b).
14.3 Business Days
(a) If a payment pursuant to this contract matures on a date that
is not a Business Day, the due date of such payment will be
the immediately following Business Day.
(b) In the event of any extension of the due date of the payment
of any amount of capital hereunder, the interest rate
applicable to said amount of capital will be equal to the
interest rate valid on the original due date.
14.4 Partial Payments
If the Bank receives a payment whose amount is lower than the amounts
owed on that date pursuant to the contract, regardless of any objection
indicated by the Company, the aforementioned partial payment will be
applied as follows:
(i) first of all, to the amounts owed to the Bank and
payable as fees, expense reimbursement, cost pursuant
to this contract;
(ii) secondly, to the amounts owed to the Bank and payable
for interest and commissions pursuant to this
contract;
(iii) thirdly, to the amounts owed to the Bank and payable
as reimbursement of capital pursuant to this
contract; and
(iv) fourthly, to the amounts owed to the Bank and payable
for other reasons pursuant to this contract.
14.5 Payment due date
If this contract does not indicate the due date of a certain payment,
such payment must be made within twenty Business Days from the
respective written request of the Bank.
15. REPRESENTATIONS
15.1 Representations
The representations in this Article 15 are made by the Company in favor
of the Bank.
15.2 Legal status
The Company is a joint-stock company, validly incorporated and existing
pursuant to Italian law.
15.3 Validity and enforceability
24
Except for any general principle of law that limits the obligations of
the Company as indicated in any legal opinion required hereunder, this
contract is a source of valid, binding obligations for the Company.
15.4 Absence of conflicts
The execution of this contract and the performance of the obligations
assumed thereunder as well as the operations contemplated therein are
not in conflict with:
(a) the laws and regulations applicable to the Company;
(b) the articles of incorporation and bylaws of the Company.
15.5 Absence of Events of Default
No substantial Event of Default is outstanding and no Event of Default
will occur as a consequence of the granting of the Drawdown.
15.6 Disputes
There are no pending proceedings in courts, arbitration proceedings or
administrative actions which, should they have an unfavorable outcome,
would have a Material Adverse Effect.
15.7 Absence of Bankruptcy Proceedings
(a) The Company is capable of honoring its payment obligations on
the respective due date and is not insolvent;
(b) No petition has been filed to submit the Company to bankruptcy
proceedings, except if such petition is frivolous or contested
in good faith and in all events dismissed within 60 days;
(c) The Company is not in liquidation and has not petitioned the
Court or called a shareholders meeting to decide the
dissolution of the Company (except, in any of the
aforementioned cases, if related to or for the purposes of a
Demerger, merger or reorganization permitted pursuant to this
contract);
15.8 Renewal of the representations
(a) The representations in this Article 15 are made by the Company
as of the date of this Contract.
(b) Except for Article 15.4 (Absence of Conflicts), any
representation will be considered repeated by the Company on
the date of any Drawdown Request and the first day of every
Interest Period, in reference to the circumstances existing at
the time.
16. INFORMATION COVENANTS
16.1 Financial Statements
25
(a) The Company must deliver to the Bank its certified annual
balance sheet concerning each fiscal year ending after the
execution date of this contract.
(b) All balance sheets must be delivered as soon as they become
public.
(c) Except as otherwise indicated in this contract, any balance
sheet provided by the Company pursuant to this Article 16.1,
must be prepared according to GAAP. If the GAAP used by the
Company at December 31, 2004 are modified at any time so as to
have a relevant impact on the calculation of the commitments
indicated in Article 17 (Financial covenants), then;
(i) the Company must immediately communicate such
modification to the Bank;
(ii) the Company and the Bank will discuss in good faith
for a period not exceeding 30 days the consequences
of such change on the calculation of such commitments
in Clause 17 (Financial covenants) in order to agree
on the necessary amendments to this contract in order
to place the Company and the Bank in the same
position in which they would have been in the absence
of the modification of the GAAP. Any agreement
between the Company and the Bank according to this
article will be binding between them. If no agreement
is reached as to the necessary amendments of this
contract, the Company must provide together with
every annual balance sheet, a declaration of
reconciliation sufficiently and reasonably detailed
in order to allow verifying the commitments in
Article 17 (Financial covenants) based on the GAAP
prevailing at the time.
16.2 Compliance Certificate
(a) The Company must provide to the Bank a Compliance Certificate
twice a year (on or prior to October 31 every year and within
30 calendar days from the time the certified annual balance
sheet becomes public in its final form) indicating in
reasonable detail the calculation made in order to comply with
Article 17 (Financial covenants) on the date the balance sheet
was prepared.
(b) The Certificates of Conformity must be signed by an Authorized
Representative.
16.3 Notice of Events of Default
The Company will timely inform the Bank of the occurrence of a
Substantial Event of Default and the time it becomes aware thereof.
16.4 Requisites for customer identification
(a) If:
(i) the enactment or modification of any law or
regulation (or its prevailing interpretation or
application) occurring after the stipulation date; or
26
(ii) any change in the status of the Company after the
date of this contract;
obligates the Bank to respect the requisites for customer
identification or a similar identification procedure, in the event that
the necessary information are not already available, the Company must
promptly at the request of the Bank provide or cause to be provided,
the documentation and other proof that is not prohibited by the law or
regulations, as reasonably requested by the Bank, so that the Bank may
carry out and be satisfied of having respected all the necessary
controls concerning customer identification requisites or other similar
controls in connection with all applicable laws and regulations
concerning the operations set forth herein.
17. FINANCIAL COVENANTS
17.1 Interpretation
(a) Except as otherwise set forth in this contract, an accounting
term used in this Article 17 must be interpreted according to
the principles applied in connection with the Original Balance
Sheets.
(b) No item may be debited or deducted more than once in any
calculation related hereto.
17.2 Net Financial Position
The Net Financial Position of the Company must not be negative (i.e.
with a debit balance) in an amount in an excess of Euro
6,000,000,000.00 (six billion) (measured on the annual sheet at June 30
and December 31 each year).
18. GENERAL COMMITMENTS
18.1 General
(a) The Company accepts to be bound by the commitments concerning
it in this Article.
18.2 Mergers
The Company may not engage in any merger or demerger operation without
obtaining prior written consent from the Bank (which must not be
unreasonably held) with the exception of:
(a) mergers with any person in which the Company owns, directly or
indirectly, shares (as sole partner or together with other
partners), and any person who owns directly or indirectly
shares (as sole partner or together with other partners) of
the Company;
(b)
(i) a merger by incorporation between the Company and a
company owned 100 percent by the Company and to which
a percentage of the assets and liabilities of
Holinvest was previously transferred by partial
27
demerger or, direct transfer to the Company or (ii)
taking over by the latter of assets and liabilities
of said company; and
(c) Demerger.
19. EVENTS OF DEFAULT
19.1 Cases of Cancellation and Cases of Withdrawal
The cases indicated in Articles 19.2, 19.3, 19.4, 19.10, 19.12 below
constitute Cases of Cancellation. The cases indicated in Articles 19.5,
19.6, 19.7, 19.8, 19.9, 19.11 below constitute Cases of Withdrawal
(Cases of Cancellation and Cases of Withdrawal together referred to as
"Events of Default").
19.2 Non-payment
The Company does not pay on the due date any amount it must pay in
connection with this contract according to the modalities required by
said documents, except (with the exclusion of the case of missed
payment under Article 7.4), the missed payment is made within 5 (five)
Business Days from the respective due date or (in the event of a missed
payment under Article 7.4), the missed payment is due to a technical or
administrative error and the missed payment is made within 3 (three)
Business Days from the respective due date.
19.3 Breach of other obligations
The Company does not respect any other obligation hereunder unless the
violation:
(a) can be remedied; and
(b) is remedied within twenty days from the notice of
non-conformity sent by the Bank to the Company.
19.4 Misrepresentation
A representation made or renewed by the Company in reference to this
contract or any Drawdown request is not correct, in a relevant manner,
when made or when it is deemed renewed, unless the circumstances that
caused it to be incorrect can be remedied and:
(a) can be remedied; and
(b) is remedied within twenty days from the notice relative to the
incorrect representation sent by the Bank to the Company.
19.5 Cross Default
One of the following cases occurs in connection with the Company:
(a) any Financial Debt not paid on the due date (after the term of
any period of grace applicable and any period of grace granted
pursuant to the contract in connection with said Financial
Debt);
28
(b) any Financial Debt:
(i) becomes prematurely owed and payable; or
(ii) is declared payable,
in any of the aforementioned cases as the result of a case of
cancellation or withdrawal (as defined in the respective
contracts concerning the Financial Debt in question);
unless the total amount of the Financial Debt falling under all or one
of the aforementioned Sub-paragraphs 15.1(a) or 15.1(b) is lower than
30,000,000 Euro or the respective equivalent amount.
19.6 Insolvency
Occurrence of one of the following cases in connection with the
Company:
(a) the Company is unable to pay regularly its debts on the due
date or is insolvent;
(b) the Company admits its incapacity to pay its debts on the due
date;
(c) the Company suspends in general the payment of its debts
except if (i) the payment obligation is contested in good
faith and (ii) the suspension is not due to financial
difficulties;
(d) following actual financial difficulties, the Company starts
negotiations with its creditors to restructure its debt; or
(e) the state of insolvency is declared.
19.7 Insolvency proceedings
(a) except as indicated below, occurrence of one of the following
cases concerning the Company:
(i) a shareholders meeting of the Company is called in
order to decide on filing a petition to the Court for
liquidation or opening of bankruptcy proceedings or a
decision of this type is made by the shareholders
meeting of the Company (except in any of these cases,
if related or for the purposes of a merger, demerger
or reorganization permitted in connection with the
Contract or Guarantee Contracts);
(ii) a third party files a petition for its liquidation or
admission to bankruptcy proceedings (with the
exception, in any of the aforementioned cases, if
related or for the purposes of a merger, demerger or
reorganization allowed in connection with this
contract), except if the petition is frivolous and
vexatious and contested in good faith and, in any
case, is dismissed within 60 days;
(iii) its liquidation or bankruptcy is ordered;
29
(b) Paragraph 19.7(a) does not apply to a petition for bankruptcy
filed by a creditor which is contested in good faith and with
the diligence of a good businessman and is abandoned or
dismissed within 60 days.
19.8 Creditors' process
Any pledge, attachment or execution proceedings are carried out on one
or several assets of the company with an accumulated value of at least
50,000,000 Euro and is not contested in good faith and, in any case,
the respective proceeding is not abandoned within 60 days.
19.9 Failure to comply with a final judgement
The Company omits to comply or pay any amount owed by it pursuant to
any final execution sentence or any final execution order issued or
rendered by any Court of jurisdiction, in any of these cases in an
aggregate amount liable to cause a Material Adverse Effect.
19.10 Noncompliance with the obligations in Clause 7.4
The Company does not make the payment described in Clause 7.4
19.11 Guarantee
The Guarantee Contracts are invalid or stop being enforceable and the
Security Interests are not first guarantee, except for the privileges
imposed by law and except if such Security Interests are released
pursuant to this contract.
19.12 October 5, 2007
On October 5, 2007 the Company will cause the VTL calculated in
reference with the first calculation date preceding such date to be
equal to or higher than 125 percent.
19.13 Effects related to the occurrence of a Case of Cancellation or Case of
Withdrawal
(a) Each of the Cases of Cancellation constitutes a cause for
cancellation of this contract pursuant to article 1456 of the
Civil Code.
(b) In the occurrence of a Case of Cancellation, this contract
will be deemed cancelled as of the time the Bank communicates
to the Company the intent of the Bank to use the cancellation
clause in Paragraph 19.3(a) above.
(c) It is established, however, that the Case of Cancellation will
be deemed non-occurred in the event that the Case of
Cancellation is remedied before the aforementioned
cancellation notice is sent by the Bank.
(d) Each Case of Withdrawal constitutes a cause entitling the Bank
to withdraw from this contract pursuant to article 1373 of the
Civil Code.
30
(e) The Bank's withdrawal from this contract will be efficient
only following a notice sent by the Bank to the Company
concerning its intent to use the right in Paragraph 19.13(d)
above.
(f) When the Company receives the notice by which the Bank
declares the intent to withdraw from this contract pursuant to
this Paragraph, the Bank will no longer be obligated to make
the financing available.
(g) The Bank:
(i) in the occurrence of one of the cases in article 1186
of the Civil Code; as well as
(ii) (ii) it used the right to cancel this contract under
Paragraph 19.13(b) above; as well as
(iii) (iii) whenever it uses the right to withdraw from
this contract under Paragraph 19.13(c) above; will
have the right, at the same time with the automatic
cancellation notice, the warning to comply or the
notice of withdrawal or subsequently, to use one or
several of the following rights:
(A) to declare that any amount owed by the Company
under this contract is payable as of that
time, with the consequence that the Company
must reimburse any such amount after receipt
of a subsequent notice from the Bank
requesting the reimbursement of any such
amount or part thereof, within the term,
including immediately, specified in the
notice;
(B) to declare that the Company has forfeited the
benefit of term, without court decision, in
connection with the payment of any amount owed
by the Company hereunder, in which event the
Company will be obligated to reimburse
immediately any amount of the financing that
was disbursed and not yet reimbursed, together
with any interest matured and any other amount
owed for any reason;
(C) to execute the Guarantee Contracts.
Any notice sent pursuant to this clause will become
enforceable according to its terms.
20. PROOF AND CALCULATIONS
20.1 Accounting Documents
The accounting documents held by the Bank in connection with this
contract constitute, in the absence of material error, proof of the
issues to which they refer for the purposes of any dispute or
arbitration proceeding.
20.2 Certificates and determinations
31
Any certificate or determination of a Bank concerning a rate or an
amount in connection with this contract will be made in good faith and
the base of such rate or amount will be indicated in reasonable detail
and, in the absence of material error, will constitute proof of the
issues to which they refer.
20.3 Calculations
Any interest or fee matured in connection with this contract matures
from day to day and is calculated based on the actual number of days
lapsed and a year of 365 days.
21. COMMISSIONS
21.1 Subscription commissions
On the Closing Date, the Company must pay to the Bank a subscription
commission of 0.95 percent on the Maximum Amount.
21.2 Commitment commission
The Company must pay to the Bank a commitment commission of 0.1875
percent per annum on the amount not used and not canceled of the
Maximum Amount.
The commitment commission must be paid to the Bank quarterly at the end
of every quarter and will be calculated from the Closing Date.
22. INDEMNITIES AND BREAK COSTS
22.1 Indemnities
(a) The Company will compensate the Bank in connection with any
cost incurred by the Bank as a direct consequence of:
(i) occurrence of any Event of Default;
(ii) any omission of the Company to pay any amount owed in
connection with this contract on the Due Date;
(iii) (to the exclusion of cases of gross negligence or
default of the Bank) absence of disbursement of a
Drawdown after the delivery of the respective
Drawdown Request; and
(iv) absence of prepayment of a Drawdown (or part of a
Drawdown) pursuant to this contract.
In any of the aforementioned cases, the responsibility of the
Company includes the direct costs related to the funds
collected or used to finance amounts payable in connection
with this contract or any Drawdown.
(b) The Company will compensate the Bank for any cost incurred by
the Bank as a direct consequence of having acted following any
communication sent by the Company to the Bank, which the Bank
reasonably thought to be genuine, correct and duly authorized.
32
22.2 Break Costs
(a) The Company must pay to the Bank the Break Costs in the event
of prepayment of a Drawdown on a date other than the last date
of the Interest Period applicable to such Drawdown.
(b) The Break Costs are the possible amounts determined in good
faith by the Bank equal to the difference (if positive)
between:
(i) interest (not including Margin) which the Bank would
have received for the period from the total or
partial reimbursement date of the Drawdown to the
last day of the Interest Period applicable to such
Drawdown, if the capital amount or the amount matured
and received were paid on the last day of such
Interest Period; and
(ii) by placing an amount equal to that received as
deposit with a prime bank in the European interbank
market for a period starting from the date of receipt
and ending on the last day of the applicable Interest
Period.
23. HEDGING
The Company undertakes, whenever it decides its own exclusive
discretion, to carry out a hedging operation against the interest rate
risk arising directly from this contract, to enable the Bank to
replicate the contractual conditions and the pricing obtained from
market counterpart, sending to the Bank written notice containing the
main characteristics of the operation proposed. If the Bank is able to
replicate exactly these conditions, it must issue a written notice to
the Company no later than 5 Business Days after receipt of the
communication of the Company. In this case, the Company and the Bank
will undertake in good faith to enter into the agreement within the
next 2 Business Days. Otherwise, the Company will have no obligation
towards the Bank for the purposes of this Article 23.
24. COSTS AND EXPENSES
The Company and the Bank must pay, each in its own portion, the costs
and expenses (including legal fees) incurred by each of them in
connection with any modification, waiver or agreement that becomes
necessary in connection with this contract and the Guarantee Contract
after the Stipulation Date.
The Company will not be entitled to receive anything from the Bank for
the expenses related to the preparation of this contract and the
Guarantee Contracts until the Stipulation Date. It is understood that
notary expenses for the stipulation of this contract and of the
Guarantee Contracts will be paid by the Company.
Any costs or expense incurred jointly by both parties will be equally
distributed between them.
25. AMENDMENTS AND WAIVERS
25.1 Procedure
33
Except as otherwise set forth in this Article 25, any term of this
contract or of the Guarantee Contracts may be amended or waived with
the agreement of the Company and Bank.
25.2 Waivers and accumulative remedies
The rights of the Bank in connection with this contract:
(a) may be exercised according to the necessary frequency;
(b) are accumulable and added to any other right granted by law;
and
(c) may be waived only in writing.
A delay in the exercise or failure to exercise any right does not
constitute a waiver of such right.
26. TRANSFERS AND ASSIGNMENTS
26.1 Transfers and assignments by the Company
The Company may not assign or transfer any of its rights or obligations
hereunder or under the Guarantee Contracts without prior approval from the Bank.
26.2 Assignments and transfers by the Bank
(a) After notifying the Company, the Bank (hereinafter the
"Existing Bank") may, under the conditions and terms described
in this Article 26.2, at any time assign or transfer
(including by message that imply a novation of the relation)
in full or in part, its rights and obligations hereunder and
under the Guarantee Contracts only to another Bank controlled
by the Bank, residing for tax purposes in Italy (the "New
Bank").
(b) Transfers or assignments are not permitted by the Existing
Bank or the New Bank in favor of subjects which are not
controlled by the Bank.
(c) Whenever (i) the Bank assigns or transfers any of its rights
and its obligations hereunder or changes its disbursement
Branch and (ii) following circumstances already existing on
the date of the assignment, transfer or modification, the
Company finds that it must make a Tax Payment or additional
cost (as defined in Article 12), then the Company will be
obligated to pay such Tax Payment or additional cost only in
the portion equal to the amount it should have paid in the
absence of any assignment, transfer or modification, except if
such assignment, transfer or modification was made by the Bank
in order to mitigate, with prior written approval of the
Company, events that may have given rise to such Tax Payment
or additional cost or a right to prepayment and/or
cancellation of the available funds, for reasons of violation
of the law.
27. LENDER'S OBLIGATION
34
27.1 In derogation to the above provisions of Article 26.1 it is understood
that, in the event of Demerger, Hopa or one of its related companies or
a vehicle company constituted ad hoc ("Coverage Company") may take over
part or all the debt of the Company pursuant to this contract (the
"Transferred Debt") and become the assignee of part of the Collateral
as agreed between the partners of the Company under the Shareholders
Agreements at the time of the Demerger.
27.2 Taking over the Transferred Debt by the Coverage Company will assume
the form of a releasing coverage agreement pursuant to article 1273 of
the Civil Code ("Releasing Coverage Agreement") and will be enforceable
against the Bank as soon as the Company communicates to the Bank the
Demerger, the amount of the transferred debt and the amount of the
Collateral for which the release is requested pursuant to point (c) in
Paragraph 27.1 below and/or at the time the transfer to Hopa is
communicated pursuant to Article 27.1 above.
27.3 As a consequence of the Release Coverage Agreement in Article 27.2
above:
(a) the Company will be released from any and all obligations
concerning the reimbursement of the Transferred Debt by the
Coverage Company;
(b) The commitment to Finance of the Bank and the Maximum Amount
hereunder will be reduced by an amount equal to the amount of
the Transferred Debt;
(c) The Company will have the right to obtain from the Bank the
release from an amount of Collateral for which the VTL
existing on the day after the communication of the Release
Coverage Agreement is communicated to the Bank not lower than
the VTL existing on the day before the execution of the
Release Coverage Agreement.
27.4 It is understood that the Coverage Company must reimburse the
transferred debt under the same terms and conditions as the Company
hereunder.
28. CONFIDENTIALITY
28.1 The Bank must maintain confidential any information given to it by or
on behalf of the Company for the purposes of or in connection with this
contract or the Guarantee Contracts, including information provided
before the Stipulation Date in connection with the availability of the
Financing. However, the Bank will have the right to disclose any
information:
(a) which is accessible to the public provided it is not the
result of a violation of this Article 28 by the Bank;
(b) given in connection with any legal or arbitration proceeding
filed against the Company;
(c) if, and to the extent that, it is forced by law or regulation
or by an order of judicial authorities;
(d) governance, banking, task or other authorities, when requested
and necessary;
35
(e) to its own professional consultants for the purposes hereof
and only when such consultants are bound by a confidentiality
agreement and know that the information given to them is
confidential;
(f) within the limits set forth in Article 28.2 below; or
(g) with the approval of the Company.
28.2 The Bank may transmit to one of its Subsidiaries to which it has
already transferred or intends to transfer part of its participation in
this contract pursuant to Article 26.2 above, a copy of this contract,
of the Guarantee Contracts and any other information obtained by the
Bank from or in connection to this contract and the Guarantee
Contracts, only if such Subsidiary promises to keep such documentation
and information confidential, and not to disclose it other than
expressly set forth in this Article 28.
29. SEVERABILITY
If any provision of this contract is or becomes contrary to principles
of law or null and not actionable, it will not influence in any manner
the validity or applicability of any other provision hereof.
30. COMMUNICATIONS
30.1 Written communications
(a) Any communication concerning this contract or the Guarantee
Contracts must be made in writing and, unless otherwise
indicated, may be delivered in person or mailed or sent by
fax, email or any other electronic communication system
previously approved by the Bank and the Company, to the
address and to the attention of the persons indicated below,
respectively, for the Company and for the Bank.
(b) for the purposes of the Contract and of the Guarantee
Contracts, an electronic communication will be considered a
written communication.
30.2 Addressees of the Communications
(a) For the Company:
Olimpia S.p.A.
Address: Xxxxx Xxxxx, 000
X-00000 Xxxxx
Fax: x00 00 0000 0000
E-mail: xxxxxx.xxxxxx@xxxxxxx.xxx
Attention: Xx. Xxxxxx Xxxxxx
(b) For the Bank:
Monte dei Paschi di Siena S.p.A. - Siena Office
Address: Xxxxxx Xxxxxxxxx, 0
I - Siena
36
Fax: +39 0577/296292
E-mail: xxxxxxx.xxxxxxxxxxx@xxxxx.xxx.xx
Attention:Dir. Manfriani / Xxxxxxxxxxx
(c) Either Party may change the contacts for the aforementioned
communications by notifying the other party of the new ones
with notice of at least five Business Days.
(d) If a Party indicates a certain department or employee to
receive a communication, such communication will not be valid
if it does not bear express indication of said department or
employee to which it must be sent.
30.3 Validity
(a) Except as indicated below, any communication sent in
connection with this Contract or the Guarantee Contracts will
be deemed received:
(i) If delivered in person to the addressee at the time
of delivery;
(ii) If sent by registered mail with acknowledgment of
receipt, when it is received by the addressee, as
indicated in the acknowledgment of receipt;
(iii) If sent by fax, e-mail or any other type of
electronic communication, when received by the
addressee in legible form.
(b) a communication received as indicated in article 30.2 above,
but received on a holiday or after work hours, will be deemed
received by the addressee only on the following business day.
31. LANGUAGE
Any communication hereunder must be in Italian.
32. GOVERNING LAW
This contract is governed by, and must be interpreted according to
Italian law.
33. CHOICE OF JURISDICTION
Except in the events of mandatory competence pursuant to the law, the Court of
Milan will have exclusive competence to take cognizance of any dispute between
the parties arising from this contract (including any dispute as to its
existence, validity or cancellation).
THIS CONTRACT was stipulated on the date first indicated in this contract.
[signature] [signature]
Olimpia S.p.A. Banca Monte dei Paschi di Siena S.p.A.
37
LEGALIZATION
I, the undersigned, notary public in Basel (Switzerland) certify as authentic
the above signatures affixed today in my presence, of
- Xxxxxxx Xxxxxxx, born August 30, 1952 in Rentrisch (Germany) a French citizen,
domiciled and residing in Reinach (Xxxxx-Xxxxxxxx, Switzerland), personally
known to me;
-Piero Manfriani, born March 9, 1951 in Portoferraio (Italy), domiciled and
residing there, an Italian citizen, who identifies himself with his Italian
identity card No. 6540405.
Basel, the 28th (twenty-eighth) day of June 2005 (two thousand five)
[signature]
Notary
Leg. Prot. No. 42/2005
----------------------
ADDENDUM A
CONDITIONS PRECEDENT - DOCUMENTS
Company
1. A copy of the articles of incorporation and current bylaws of the
Company.
2. A copy of the decision of the Company's Board of Directors, which:
(a) approves the terms and conditions of this contract and the
Guarantee Contracts to which it is a party, and the execution
thereof;
(b) authorizes one or several persons to sign in its name and on
its behalf this contract and the Guarantee Contracts to which
it is a party; and
(c) authorizes one or several persons to sign and deliver in its
name and on its behalf, all documents and notifications
(including any Drawdown Request) which the Company must sign
and deliver pursuant to this contract and the Guarantee
Contracts to which it is a party.
3. A sample of the signature of each person authorized by the Company to
sign this contract and the Guarantee Contracts to which it is a party
or to sign and deliver any document or notification pursuant to this
contract and the Guarantee Contracts to which it is a party.
Guarantee Contracts
1. Proof that the original Guarantee Contracts listed in Addendum D
(Guarantee Contracts), point (a), will be duly signed at the time of
the first Drawdown.
ADDENDUM B
MODEL OF DRAWDOWN REQUEST
To: Monte dei Paschi di Siena S.p.A.
From: Olimpia S.p.A.
Date: __________________
OLIMPIA S.p.A. Financing Contract for Euro 600,000,000 stipulated on [ ] (the
"Contract")
1. We are referring to the Contract. This constitutes a Drawdown Request. The
terms defined in the Contract will have the same meaning in this Drawdown
Request when used in initial capital letter, except when otherwise established
or specified or when otherwise requested by the context.
2. We are hereby asking you to disburse a Drawdown under the following
conditions:
(a) Disbursement date
(b) Amount of the Drawdown
(c) Interest Period
3. The Drawdown must be credited on the Disbursement Date
4. We confirm by signing this letter, that all conditions precedent applicable
to the contract that must be met as of the date of this Drawdown Request
have been met.
5. This Drawdown Request is irrevocable.
ADDENDUM C
MODEL OF COMPLIANCE CERTIFICATE
To: Monte dei Paschi di Siena S.p.A.
From: Olimpia S.p.A.
Date: __________________
OLIMPIA S.p.A. Financing Contract for Euro 600,000,000 stipulated on [ ]
(the "Contract")
1. We are referring to the Contract. This constitutes a Compliance
Certificate. The terms defined in the Contract will have the same
meaning in this Compliance Certificate when used in initial capital
letter, except when otherwise established or specified or when
otherwise requested by the context.
2. We hereby confirm that as of the date of [ ] [date of the balance sheet
delivered together with this Compliance Certificate] the net financial
position is [ ].
3. The figures indicated in paragraph 2 above have been calculated as
follows:
[ ]
Olimpia S.p.A.
ADDENDUM D
GUARANTEE CONTRACTS
1. First Pledge on TI Shares, TI Convertible Bonds and/or Warrants in favor of
the Bank.
2. First Pledge on any additional Guarantee in favor of the Bank.
ADDENDUM E
MODEL RELEASE CERTIFICATE
From: Olimpia S.p.A
To: Monte dei Paschi di Siena S.P.A.
[Date]
Subject: request for release of Guarantee
Dear Sir,
1 We are referring to the financing contract of Euro 600,000,000 executed
on [?], as amended and completed from time to time (the "Contract"),
under which you made available to Olimpia S.p.A. a "revolving" credit
line of 600 million. The terms defined in the Contract will have the
same meaning in this instrument when used in initial capital letter
except when otherwise established or specified or whenever the context
requires otherwise.
2 We hereby confirm that:
(i) The VTL (calculated pursuant to Article 7.8 of the Contract as of
the date immediately preceding the date hereof) is equal to or
greater than 130 percent;
(ii) There is no pending Event of Default;
(iii) all representations to be renewed are true in all relevant
aspects as of the date hereof.
3 We hereby request that an amount equal to [?]
[shares/warrants/convertible bonds] of Telecom Italy S.p.A. be released
from the pledge constituted pursuant to the contract executed on [?],
so that the VTL (pursuant to Article 7.8 of the Contract) after such
release will be equal to 125 percent.
Kindly acknowledge receipt of this letter.
Faithfully yours
-----------------------
Olimpia S.p.A.
