Exhibit 84
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
--------------------------------------------------------------------------------
INDEX
Article Page
1. ADDENDA, DEFINITIONS AND REFERENCES................................23
2. FINANCING..........................................................32
3. PURPOSE............................................................32
4. CONDITIONS PRECEDENT...............................................33
5. USE OF THE FINANCING...............................................34
6. REIMBURSEMENT ON THE DUE DATE......................................35
7 PREPAYMENT, CANCELLATION AND COLLATERAL............................35
8. INTEREST...........................................................40
9. INTEREST PERIODS...................................................42
10. ALTERNATIVE RATES..................................................42
11. TAXES..............................................................43
12. INCREASED COSTS....................................................45
13. MITIGATION.........................................................46
14. PAYMENTS...........................................................46
15. REPRESENTATIONS....................................................47
16. INFORMATION COVENANTS..............................................49
17. FINANCIAL COVENANTS................................................50
18. GENERAL COMMITMENTS................................................50
19. EVENTS OF DEFAULT..................................................51
20. PROOF AND CALCULATIONS.............................................55
21. COMMISSIONS........................................................55
23. HEDGING............................................................56
24. COSTS AND EXPENSES.................................................56
25. AMENDMENTS AND WAIVERS.............................................57
26. TRANSFERS AND ASSIGNMENTS..........................................57
27. COVERAGE BY HOPA...................................................58
28. CONFIDENTIALITY....................................................58
29. SEVERABILITY.......................................................59
30. COMMUNICATIONS.....................................................59
31. LANGUAGE...........................................................61
32. GOVERNING LAW......................................................61
33. CHOICE OF JURISDICTION.............................................61
ADDENDUM A CONDITIONS PRECEDENT - DOCUMENTS..............................63
ADDENDUM B MODEL OF DRAWDOWN REQUEST.....................................64
ADDENDUM C MODEL OF COMPLIANCE CERTIFICATE...............................65
ADDENDUM D GUARANTEE CONTRACTS...........................................66
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:
23
(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.
24
"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.
25
"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.
"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.
26
"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.
"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
27
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 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
28
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 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
29
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
(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;
30
(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
(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.
31
(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
(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
32
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);
(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
33
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.
(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.
34
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.
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.
35
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 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
36
(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) (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 all
other 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:
37
(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;
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
38
(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
(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.
39
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.
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:
40
----------------------------------------------------------- ----------------------------------
Period Margin
(basis points)
----------------------------------------------------------- ----------------------------------
from the Stipulation Date to October 4, 2007 50
----------------------------------------------------------- ----------------------------------
from October 5, 2007 to the Final Due Date 85
----------------------------------------------------------- ----------------------------------
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.
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.
41
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-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
42
(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
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.
43
(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 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).
44
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 signing of an Assignment Certificate.
11.6 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.
45
12.2 Exceptions
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. Payments
(a) All payments that must be made pursuant to this contract must be made
in Euro.
46
(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.
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
47
The Company is a joint-stock company, validly incorporated and existing
pursuant to Italian law.
15.3 Validity and enforceability
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.
48
16. INFORMATION COVENANTS
16.1 Financial Statements
(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
49
(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;
50
(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
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:
51
(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);
(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
52
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;
(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
53
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.
(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) it used the right to cancel this contract under Paragraph
19.13(b) above; as well as
(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:
(i) 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;
(ii) 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;
(iii) to execute the Guarantee Contracts.
Any notice sent pursuant to this clause will become enforceable
according to its terms.
54
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
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.
55
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.
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.
56
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
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
57
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
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:
58
(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;
(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.
59
(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
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.
60
(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.
61
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
----------------------
62
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.
63
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.
64
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.
65
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.
66
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.
67
