EXHIBIT 91
On December 22, 2005
Between
OLIMPIA S.p.A.
(the Pledgor)
and
INTERBANCA S.P.A.
e
BANCA ANTONIANA POPOLARE VENETA S.P.A.
(the Guaranteed Creditors)
and
INTERBANCA S.P.A.
(the Depository)
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DEED OF PLEDGE FOR DEMATERIALIZED SHARES
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TABLE OF CONTENTS
Article Page
1. INTERPRETATION.....................................................2
3. GUARANTEED OBLIGATIONS.............................................6
4. PERFECTING OF THE PLEDGE...........................................6
5. VOTING RIGHTS AND RELATED RIGHTS...................................7
6. RIGHTS RELATING TO THE WARRANTS AND
THE CONVERTIBLE BONDS............................................7
7. ENFORCEMENT OF THE PLEDGE..........................................8
8. DECLARATIONS AND GUARANTEES.......................................10
9. UNDERTAKINGS OF THE PLEDGOR.......................................11
10. EXTINCTION AND CANCELLATION OF THE PLEDGE.........................11
11. INDEMNITY, TAXES, COSTS AND EXPENSES..............................12
12. COMMUNICATIONS....................................................12
13. VARIOUS REGULATIONS...............................................14
14. APPLICABLE LAW AND JURISIDCTION...................................16
APPENDIX 1 Financing Contract..............................................18
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THIS DEED OF PLEDGE is signed in Basle on December 22, 2005 between:
OLIMPIA S.p.A., an Italian company with legal address in Xxxxx Xxxxx, 000,
Xxxxx, Xxx Code and registration number at the Milan Business Register
03232190961, company capital 4,630,233,510.00 Euro, fully paid up (the
"Pledgor");
INTERBANCA S.P.A. with legal address in Xxxxx Xxxxxxx, 00, Xxxxx, company
capital 180,899,106.00 Euro, Tax Code and registration number at the Milan
Business Register 00776620155, registered in the Bank Register and belonging to
the BANCA ANTONIANA - POPOLARE VENETA Bank Group registered in the Bank Group
Register no. 5040 (the "Lead Bank" and the "Depository");
BANCA ANTONIANA POPOLARE VENETA S.P.A., with legal address and general
management in Xxxxxxxxx Xxxxxx, 0, Xxxxxx, sharecapital 864,790,938.00 Euro,
registered in the Padova Business Register, Tax Code and VAT number 02691680280,
registered in the Bank Register and belonging to the Banca Antoniana Popolare
Veneta Bank Group registered in the Bank Group Register no. 5040 ("Banca
Antonveneta" and, together with the Lead Bank, the "Guaranteed Creditors");
RECITALS:
(1) with financing contract (the "Financing Contract") signed on the same date
by the Lead Bank, Banca Antonveneta and the Pledgor, the Lead Bank and
Banca Antonveneta have undertaken to grant the Pledgor financing for a
total of 260,000,000 Euro (the "Financing") as per the terms specified in
the Financing Contract enclosed here in Appendix 1;
(2) the Pledgor owns 118,909,030 ordinary shares in the Company (as defined
below) with a nominal value of 0.55 Euro each (the "Shares");
(3) the Shares are part of the centralized management dematerialization system,
in accordance with article 28 and following of Italian Legislative Decree
of June 24, 1998, no. 213, as amended and expanded from time to time (the
"Euro Decree");
(4) the Depository, as Depository and intermediary authorized in accordance
with Italian Legislative Decree of February 24, 1998, no. 58, as integrated
and modified accordingly (the "TUF"), is Depository for a special account
in the name of the Pledgor, used, inter alia, to register the setting up of
constraints on the Shares owned by the Pledgor in accordance with article
34 of the Euro Decree;
(5) as condition for the provision of the Financing, the Lead Bank and Banca
Antonveneta have asked that the Pledgor pledges the shares in favor of the
Lead Bank and Banca Antonveneta;
(6) the Depository will carry out all the formalities required of it to perfect
the Pledge (as defined below) set up in accordance with this Deed.
GIVEN THE ABOVE, the parties hereby agree the following:
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1. INTERPRETATION
The Recitals and the Appendices are an integral and substantial part of
this Deed. When required by the context, the terms defined in the singular
will have the same meaning as the meaning in the plural, and vice versa.
The terms defined in the Financing Contract have the same meaning when used
within this Deed, unless otherwise specified in this Deed.
1.1 Definitions
Within this Deed:
"Financial Assets" indicates the Equivalent of the Cash and the other
centered management financial instruments indicated, in the Financing
Contract, in the definition of Guarantees.
"Shares" has the meaning specified above in Recital 2.
"Banca Antonveneta" indicates Banca Antoniana Popolare Veneta S.P.A.
and all of its particular or universal transferees or assignees.
"Lead Bank" indicates Interbanca S.P.A. and all of its particular or
universal transferees or assignees.
"Cause of Execution" (in alternative "Enforcement" piu corretto)
indicates the occurrence of any one of the Events of Default (as
defined in the Financing Contract), as communicated by the Lead Bank
in accordance with art. 19.16 of the Financing Contract, which have
not been resolved within the terms specified therein.
"Assignment" indicates the Assignment of the Financing Contract and
this Deed in accordance with Article 25.2 (Assignment by the Financing
Banks) of the Financing Contract.
"Constrained Cash Account" indicates the current account set up by the
Pledgor at the Depository.
"Security Account" indicates the security account set up by the
Pledgor at the Depository.
"Financing Contract" has the meaning specified above in Recital 1.
"Guaranteed Creditors" indicates the Lead Bank and Banca Antonveneta.
"Decree 170" indicates Italian Legislative Decree no. 170 dated May
21, 2004.
"Euro Decree" has the meaning specified above in Recital 3.
"Consob Decision" indicates the Consob decision no. 11768 dated
December 23, 1998, as integrated and modified accordingly.
"Depository" indicates Interbanca S.P.A.
"Related Rights" indicates:
(a) any Dividend;
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(b) any option right for the Shares or the Related Securities;
(c) any share or other security or rights attributed to the Pledgor in
exchange for any Related Security; and
(d) any other proceed deriving from the items listed in letters (a), (b)
and (c) above in this paragraph.
"Dividends" indicates:
(a) every dividend and advance on the dividends paid on the Shares and
company shareholdings which are part of the assets pledged in
accordance with this Deed after the date of this Deed;
(b) every other distribution (in money or in kind), profit-sharing or
other amount paid in relation to the Shares (including, by way of
example, every amount paid following the distribution of reserves);
(c) every dividend, distribution or other amount paid on the Related
Securities.
"Financing" has the meaning specified above in Recital 1.
"Bankruptcy Law" indicates Italian Royal Decree no. 267 dated March
16, 1942, as integrated and modified accordingly.
"Coverage Level" has the meaning attributed to the term VTL in the
Financing Contract.
"Guaranteed Obligations" indicates:
(a) all the monetary obligations, current and future, of the Pledgor as
per the Financing and, therefore, those relating to the implementation
of the obligations for the payment of the capital, interest, default
interest, costs and expenses, commissions, taxes or other tax
obligations, any amount due as repayment or advance repayment of a
part of or the entire amount of the Financing on a date other than the
date set in the contract and all the other costs, expenses, taxes or
other tax obligations due in the event of enforcement as per this Deed
or the exercising by the Lead Bank of the solutions envisaged by the
Financing Contract;
(b) all the monetary obligations of the Pledgor deriving from the
invalidity or inefficacy of the obligations specified in paragraph (a)
above such as, merely by way of example, the obligations specified in
article 2033 or article 2041 of the Italian Civil Code;
(c) all the monetary obligations of the Pledgor in the event of revocation
or inefficacy in accordance with article 65 or article 67 of the
Bankruptcy Law (or any other similar standard as per the applicable
law) of any payment made by the Pledgor to comply with the obligations
specified in paragraph (a); as well as
(d) all the monetary obligations of the Pledgor in accordance with this
Deed.
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"Subject of the Pledge" indicates, collectively, on the date of the
signing of this Deed, the Shares, the Related Securities and the
Related Rights, and, subsequently, the Financial Assets, to which the
Pledge may be extended to add to the financial guarantee set up in
accordance with this Deed.
"Pledge" indicates the pledge on the Subject of the Pledge created
with this Deed, on the Signing Date, and, subsequently, as extended
and integrated as envisaged in this Deed.
"Guaranteed Period" indicates the period which starts from the date of
this deed and ends with the full compliance of the Guaranteed
Obligations, notwithstanding the fact that, if the Pledgor who, in the
meantime, has made payments to comply with the Guaranteed Obligations,
has been declared bankrupt or subject to any type of settlement
proceedings which leads to the application of art. 65 or art. 67 of
the Bankruptcy Law, this term will be extended until the expiry term
for the revocatory action.
"Issuer Regulations" indicates Consob decision no. 11971 dated May 28,
1999, as integrated and modified accordingly.
"Company" indicates TELECOM ITALIA S.p.A., an Italian company with
legal address in Xxxxxx Xxxxxx, 0, Xxxxx, Tax Code and registration
number at the Milan Business Register 00488410010, company capital
10,667,763,202.80 Euro, fully paid up.
"TUF" has the meaning specified above in Recital 4.
"Related Securities" indicates every share or other security, right or
proceed attributed at any time to the Pledgor in exchange for Shares
(including, by way of example, following a merger, de-merger or
transformation of the Company).
2. GUARANTEE
2.1 Pledge
2.1.1 The Pledgor hereby irrevocably sets up the Subject of the Pledge as a
first degree pledge in favor of the Guaranteed Creditors.
2.1.2 This Pledge will be extended to the Related Securities without the
need for any formalities.
2.1.3 If there is a merger whose result is one of the cases indicated in
Article 7.3(a)(1) and 7.3(a)(3) of the Financing Contract, the parties
will meet to define the methods to be used for the continuation of the
relationship as per the Financing Contract and if no agreement is
reached within 30 days, the Financing must be repaid.
2.2 Integration of the guarantee with further Financial Assets
If one of the cases specified in Article 7.4 (Mandatory Prepayment for
VTL requirements) and art. 7.8 (Optional Additional Collateral) of the
Financing Contract should occur, as established therein, the Pledgor
may (i) integrate the Pledge in favor of the Guaranteed Creditors with
the further Financial Assets which will be indicated accordingly by
the Pledgor, also in accordance with article 2 of Decree 170, in order
to guarantee the Coverage Level envisaged accordingly in the Financing
Contract or, in the first case, (ii) repay the Financing.
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2.3 Formalities relating to the perfecting of the Pledge on the future Shares
and on the further Financial Assets
Whenever:
(a) the Company issues new shares following free capital increases; or
(b) the Pledgor must or intends to pledge further Financial Assets as per
the Financing Contract, the Pledgor itself in relation:
2.3.1 to both the newly-issued shares and the further Financial Assets
(collectively, the "New Financial Instruments"), must then:
(a) allow the Depository to carry out all the formalities required for the
perfecting of the Pledge on the New Financial Instruments and, in
particular, register, and the Depository undertakes to register, by
pledging them, the New Financial Instruments in the Security Account
held in accordance with article 34 of the Euro Decree, in accordance
with article 45 of the Consob Decision, informing the Company of this
immediately as per article 87 of the TUF; and
(b) make sure that the Company, when it receives the communication
specified above in paragraph (a):
(1) notes the setting up of the Pledge on the New Financial
Instruments in the Shareholders' Book and in the other
appropriate Company books; and
(2) within 20 (twenty) Working Days, delivers to the Lead Bank a copy
of the pages of the Shareholders' Book and the other appropriate
Company books proving this noting.
2.3.2 The payment of the cash into the Constrained Cash Account must be
registered with the financial guarantee set up for the Cash Equivalents in
accordance with Article 2 of Decree 170.
2.4 Pledge Regulations
The regulations of this Deed will apply to all the Pledges created as
per this Article 2.
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3. GUARANTEED OBLIGATIONS
The Subject of the Pledge is set up as a first degree pledge in favor
of the Guaranteed Creditors to guarantee the Guaranteed Obligations.
4. PERFECTING OF THE PLEDGE
The Pledgor must:
(a) allow the Depository to carry out all the formalities required for the
perfecting of the Pledge and, in particular, register, and the
Depository undertakes to record, by pledging them, the Shares in the
Security Account held in accordance with article 34 of the Euro
Decree, in accordance with article 45 of the Consob Decision,
informing the Company of this immediately as per article 87 of the
TUF; and
make sure that the Company:
(b) when it receives the communication specified above in paragraph (a),
registers the setting up of the Pledge in the Company Shareholders'
Book; and
(c) within 20 (twenty) Working Days of the receipt of the communication
specified above in paragraph (a), sends the Lead Bank a copy of the
pages of the Company Shareholders' Book proving this noting.
The Depository, in accordance with the specifications in the Euro
Decree, will issue, at the request of those who have voting rights, as
specified below in Article 5, the certifications required to exercise
the rights relating to the Shares.
5. VOTING RIGHTS AND RELATED RIGHTS
5.1 Voting rights
5.1.1 Until one of the Causes of Execution occurs, the voting rights and
the administrative rights relating to the Shares, both within the
Ordinary Shareholders' Meetings and in the Extraordinary Shareholders'
Meetings of the Company, will remain with the Pledgor.
5.1.2 If one of the Causes of Execution occurs, the voting rights, both
within the Ordinary Shareholders' Meetings and in the Extraordinary
Shareholders' Meetings of the Company called afterwards, may be
exercised by the Guaranteed Creditors regardless of any exceptions,
oppositions or disputes, including judicial ones, which may be raised
by third parties (other than the Monitoring Authorities) relating to
the actual occurrence of a Cause of Execution.
5.2 Related Rights
5.2.1 In relation to the entire period covered until one of the Causes of
Execution occurs, the Pledgor has the right to receive the Dividends.
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5.2.2 Following the occurrence of a Cause of Execution, the right to
receive the Dividends belongs to the Guaranteed Creditors, who will
use these to comply with the Guaranteed Obligations.
6. RIGHTS RELATING TO THE WARRANTS AND THE CONVERTIBLE BONDS
6.1 Pledge on Warrants and Convertible Bonds
If the Pledge is extended, as per Articles 2.3 and 2.4 above, to
further Financial Assets represented by warrants or convertible bonds
of the Company (the "Warrants" and the "Convertible Bonds"), the
regulations specified below in Article 6.2 will apply.
6.2 Special regulations for the rights relating to the Warrants and the
Convertible Bonds
(a) Despite the Pledge set up on the Warrants and the Convertible Bonds,
the parties hereby agree that the Pledgor will keep the incontestable
right to exercise the Warrants and to convert the Convertible Bonds.
(b) The Pledgor may ask the Lead Bank, also more than once, to exercise
the Warrants and/or convert the Convertible Bonds, in the name of and
on behalf of the Pledgor itself, by sending the Lead Bank a
communication at least 3 (three) Working Days before the day on which
that right must be exercised and, with regard to the Warrants, also
after payment within the same terms of the sum required to subscribe
the shares of the Company deriving from the exercising of the
Warrants.
(c) It is hereby understood that the shares of the Company which are
subscribed following the exercising of the Warrants and/or the
conversion of the Convertible Bonds must be deposited in the Security
Account and are hereby considered to be irrevocably pledged in favor
of the Guaranteed Creditors to guarantee the Guaranteed Obligations.
(d) The Pledgor must allow the Depository to carry out, and the Depository
undertakes to carry out, all the formalities required to perfect the
pledge in accordance with Article 4 (Perfecting the Pledge) on the
shares deriving from both the exercising of the Warrants and the
conversion of the Convertible Bonds.
(e) The Pledgor hereby grants the Lead Bank every power of representation
required to carry out what is envisaged by this Article in relation to
the exercising of the Warrants and the conversion of the Convertible
Bonds in the name of and on behalf of the Pledgor.
7. ENFORCEMENT OF THE PLEDGE
7.1 When one of the Causes of Execution occurs, the Lead Bank (in the name of
the Guaranteed Creditors) will send the Pledgor a written communication
containing a call to comply with the Guaranteed Obligations no later than
the 15th day after receipt of this by the Pledgor, with the express warning
that, if this is not done, the Subject of the Pledge will be enforced.
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7.2 When the term specified above expires and the Pledgor has not complied with
the Guaranteed Obligations, the Lead Bank (on behalf of the Guaranteed
Creditors) will have the right, as per Decree 170, also if settlement,
restoration or winding up proceedings are started up, alternatively, to:
7.2.1 sell the Subject of the Pledge, retaining the amount paid to satisfy
and in the interests of the Guaranteed Creditors, up to the value of
the Guaranteed Obligations. The Subject of the Pledge may be sold in
full or in part and also in more than one installment, with or without
auction, but always only through primary intermediaries authorized by
either a judicial official or the Lead Bank itself; or to
7.2.2 repossess, in the name of and on behalf of the Guaranteed Creditors,
in full or in part, the Subject of the Pledge, up to the value of the
Guaranteed Obligations; and
7.2.3 with reference to the amount deposited in the Constrained Cash
Account, use the cash to comply with the Guaranteed Obligations.
Establishing the value of the Subject of the Pledge and the Guaranteed
Obligations
7.3 The Parties hereby reciprocally acknowledge that:
7.3.1 to establish the value of the Shares and the New Financial
Instruments which are the subject of the Pledge, reference will be
made to the market value of these calculated on the basis of the
corresponding official price in the regulated market in which the
Shares and the New Financial Instruments are handled the day before
the sale or the appropriation of these is communicated to the market
as per Law or reference will be made to the bank account statement
relating to the Constrained Cash Account; and
7.3.2 to establish the value of the Guaranteed Obligations, reference will
be made to the bank account statements, records and, in general, the
accounting books of the Lead Bank, except in cases in which there have
been material errors.
Use of the proceeds coming from the enforcement of the Subject of the Pledge
7.4 All proceeds coming from the total or partial enforcement of the Subject of
the Pledge must be used to comply with the claims of the Guaranteed
Creditors as follows:
7.4.1 firstly, and with equal priority, for the payment of the costs and
expenses (including, by way of example, lawyer fees, legal expenses,
taxes and duties) incurred by the Lead Bank and by the other
Guaranteed Creditors with regard to:
(a) the custody and administration of the Subject of the Pledge;
(b) the enforcement of the Subject of the Pledge;
(c) the exercising or enforcement of any right of the Guaranteed
Creditors as per this Deed;
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7.4.2 secondly, to comply with the Guaranteed Obligations as per the
regulations in the Financing Contract.
7.5 The Lead Bank will inform the Pledgor immediately in writing or, if
required, the authorities involved in the restoration or winding up
procedure, about the methods used for the enforcement of the Subject of the
Pledge and the amount collected and will then return any amounts which
exceed this to the Pledgor.
7.6 The Pledgor hereby undertakes to cooperate with the Guaranteed Creditors
who have acted or act in good faith and legitimately exercising their
rights.
8. DECLARATIONS AND GUARANTEES
8.1 Declarations and Guarantees of the Pledgor
Notwithstanding the declarations and guarantees in the Financing
Contract, the Pledgor hereby declares and guarantees the follows to
the Guaranteed Creditors:
(a) the Pledgor is the only legitimate owner of the Shares. With the
exception of the Pledge, the Shares are free of all constraints,
responsibilities, guarantee rights, privileges or any other such legal
or contractual constraint in favor of third parties, with the
exception of the constraints deriving directly and exclusively from
Law;
(b) the Shares have been validly issued, subscribed and fully released as
per current legal regulations and standards;
(c) the Pledgor has full rights and powers for signing this Deed;
(d) the Pledge covered by this Deed, following the carrying out of the
formalities specified in Article 4, will be a first degree pledge on
the Shares in order to guarantee the Guaranteed Obligations, valid and
effective for the Pledgor, the Company and the third parties;
(e) the creation and the perfecting of the Pledge are part of the company
purpose of the Pledgor and the Pledgor has obtained all the
authorizations (company or other type authorizations) required for the
setting up of the Pledge;
(f) as far as it knows, there are no contestations or proceedings, already
pending, of any kind, which could call into question or compromise the
ability of the Pledgor to conclude this Deed;
(g) the signing and the implementation by the Pledgor of this Deed, as far
as it knows, does not breach nor create any breach of third party
rights, agreements or obligations taken on by the Pledgor and
applicable to and binding for the Pledgor.
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9. UNDERTAKINGS OF THE PLEDGOR
Notwithstanding the specifications below in Article 10(b), until the
expiry of the Guaranteed Period, the Pledgor hereby undertakes:
(a) not to take action (including, merely by way of example, in exercising
the voting rights or administrative rights relating to the Shares)
aimed at compromising the validity, efficacy and enforceability of the
Pledge or the rights of the Lead Bank and the Guaranteed Creditors
relating to the Pledge and to the Subject of the Pledge;
(b) to inform the Lead Bank immediately about any claim made by third
parties within judicial proceedings in relation to the Subject of the
Pledge which might have a significant prejudicial effect on the
validity, efficacy and feasibility of the Pledge or on the rights of
the Lead Bank and the Guaranteed Creditors;
(c) to execute and deliver all the documents in good time and to take all
the action required in order to:
(i) perfect the Pledge on the Subject of the Pledge;
(ii) comply with the formalities envisaged as per Article 4 above.
10. EXTINCTION AND CANCELLATION OF THE PLEDGE
10.1.1 Notwithstanding the specifications below in paragraph (b), at the
time of the expiry of the Guaranteed Period, the Pledge will no longer
be effective, all the Related Rights with the Shares will return to
the Pledgor and, at the request and the expense of the Pledgor, the
Guaranteed Creditors will sign a deed of consent for the cancellation
of the Pledge indicating a certain date, for these purposes providing
the Company and the Depository with instructions so that the
appropriate notes are added to the Security Account and to the
Shareholders' Book.
10.1.2 After the full compliance with the Guaranteed Obligations, at the
written request of the Pledgor for the release of the Pledge, the
Guaranteed Creditors will provide their consent for the full release
of the Pledge and the noting of the cancellation of the Pledge even
before the expiry of the Guaranteed Period providing the Depository
with instructions, for these purposes, provided the Pledgor has sent
the Lead Bank, in a form and with content which are considered to be
satisfactory by the Lead Bank itself, the following:
(i) the last annual certified balance sheet and the last
half-yearly report, if envisaged, of the Company, in which there
is no fact or circumstance which must lead to the conclusion, in
good faith, that the Pledgor is in a state of insolvency;
(ii) a declaration issued by the legal representative of the
Pledgor, in which it is declares that the Pledgor, as of the date
of the full compliance with the Guaranteed Obligations and at the
time of the issuing of the declaration itself to the Lead Bank:
was not and is not in any of the situations specified by articles
2446 and 2447 of the Italian Civil Code.
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11. INDEMNITY, TAXES, COSTS AND EXPENSES
11.1 Taxes and expenses
The Notary expenses, the costs and the registration duties or other
Taxes due in the event of use, provided they are documented in written
form, will be borne exclusively by the Pledgor.
11.2 Indemnity
The Pledgor will reimburse to the Lead Bank and to the Guaranteed
Creditors and to the Depository every Tax and duty, cost, expense and
fee (including the legal and Notary fees duly documented which do not
exceed the agreed limit) specified in Article 11.1, as well as those
incurred by the Lead Bank and the Guaranteed Creditors in relation to
the setting up of the Pledge.
The Pledgor must repay these expenses and fees to the Lead Bank and to
the Guaranteed Creditors within 15 (fifteen) Working Days of the
receipt of the corresponding request and written documentation from
the Lead Bank.
12. COMMUNICATIONS
12.1 Form of the communications
Unless otherwise specified in this Deed or in accordance with Law, all
the communications relating to this Deed must be in the form and
follow the methods specified in article 28 (Communications) of the
Financing Contract.
12.2 Addresses
Notwithstanding the indications in Article 12.3, all the
communications relating to this Deed must be sent to the following
addresses:
12.2.1 if addressed to the Guaranteed Creditors and to the Lead Bank:
Interbanca S.p.A. - Milan headquarters
Address: Xxxxx Xxxxxxx, 00
00000 - Xxxxx
Fax: + 00 00 00000000
E-mail: xxxxx.xxxxxxxx@xxxxxxxxxx.xx/xxxxxxxxxx.xxxxxx@
xxxxxxxxxx.xx
For the attention of: Xxxxx Xxxxxxxx/Xxxxxxxxxx Xxxxxx
12.2.2 if addressed to the Pledgor:
Olimpia S.p.A.
Address: Xxxxx Xxxxx, 000, Xxxxx
Fax: x00 00 0000 0000
E-mail: xxxxx.xxxxxxx@xxxxxxx.xxx
For the attention of: Dott.ssa Xxxxx Xxxxxxx
12.2.3 if addressed to the Company:
Telecom Italia S.p.A.
Address: Xxxxxx Xxxxxx, 0, Xxxxx
Tel.: x00 00 0000 0000
Fax: xxxxx.xxxxxxx@xxxxxxx.xxx
For the attention of: Dott.ssa Xxxxx Xxxxxxx
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12.2.4 if addressed to the Depository:
Interbanca S.p.A. - Milan headquarters
Address: Xxxxx Xxxxxxx, 00
00000 - Xxxxx
Fax: + 00 00 00000000
E-mail: xxxxx.xxxxxxxx@xxxxxxxxxx.xx/xxxxxxxxxx.xxxxxx@
xxxxxxxxxx.xx
For the attention of: Xxxxx Xxxxxxxx/Xxxxxxxxxx Xxxxxx
If one of the parties has indicated a given department or manager
as the recipient for the communications, any communication sent
without indicating this department or manager will be considered
to be ineffective.
Notwithstanding the indications in Article 12.3, each party may
inform the other parties, in the form of a registered letter with
notification of receipt, of a different address (which must be in
Italy) for sending the communications required for the purposes
of this Deed, 5 (five) Working Days after the receipt of this
registered letter with notification of receipt.
12.3 Selection of domicile
For the purposes of the communications relating to the procedures
covered by this Deed, the Pledgor hereby irrevocably selects its
domicile at its own company headquarters in Xxxxx Xxxxx, 000
Xxxxx.
13. VARIOUS REGULATIONS
13.1 Modifications and waiving of rights
Any modifications to the regulations for this Deed or waiving of
rights created by this Deed will only have effect if approved in
writing by the Pledgor and the Lead Bank and the Guaranteed
Creditors.
13.2 Further guarantee rights
The guarantee right created with this Deed is added to and does
not alter the further guarantee rights to which the Guaranteed
Creditors have rights or gain rights with reference to the
Guaranteed Obligations.
13.3 Assignments and novations
(a) This Deed will be binding for the Pledgor, its successors, transferees
and assignees in the event of Assignment and the parties hereby
expressly agree, in accordance with article 1232 of the Italian Civil
Code, to continue the Pledge in the event of a Assignment.
(b) At the time of the Assignment, the Pledgor must, in good time:
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13.3.1 allow the Depository to update the information in the Security
Account in accordance with article 45 of the Consob Decision, promptly
informing the Company in accordance with article 87 of the TUF;
13.3.2 make sure that the Company notes the Assignment in its own
Shareholders' Book within 10 (ten) Working Days of the carrying out of
the formalities specified above in point (i); and
13.3.3 make sure that the Lead Bank is sent a copy of the pages of the
Shareholders' Book proving this noting within 20 (twenty) Working Days
of the carrying out of the formalities specified above in point (ii).
13.3.4 Any expenses for Taxes, duties, costs, withholdings and suchlike
including, merely by way of example, which is by no means exhaustive,
the registration expenses due in the event of use following
Assignment, will be borne as specified in the Financing Contract.
13.4 Cumulative action
The rights, action and solutions envisaged by this Deed in favor of
the Lead Bank and the Guaranteed Creditors are added to and do not
exclude the further rights, action and solutions which the Lead Bank
and the Guaranteed Creditors have rights to (including those envisaged
by the Financing Contract), also as per Law.
13.5 Communications to the Company
The Pledgor hereby undertakes to make sure that, within 20 (twenty)
Working Days of the signing of this Deed, the Company is informed
about the setting up of the Pledge and the regulations contained in
this Deed.
13.6 Limiting of Responsibility
The Parties hereby reciprocally exonerate each other with regard to
every responsibility deriving from the effects of legitimate acts for
exercising their respective rights deriving from this Deed which have
been or are carried out in good faith.
13.7 Partial invalidity
If, at any time, one or more of the regulations in this Deed are or
become invalid or ineffective or cannot be applied, this does not
alter the validity, efficacy and the possibility of applying the other
regulations in this Deed.
14. APPLICABLE LAW AND JURISDICTION
14.1 Applicable Law
This Deed is regulated by Italian Law.
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14.2 Jurisdiction
Any dispute relating to the interpretation, conclusion, implementation
or termination of this Deed or in any case relating to it will be
dealt with exclusively by Milan Law Court, notwithstanding the right
of the Guaranteed Creditors to take legal action against the Pledgor
before any other competent legal authority.
Basle, December 22, 2005.
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SIGNATORIES
Olimpia S.p.A.
______________________________________
Interbanca S.p.A.
______________________________________
Banca Antoniana Popolare Veneta S.p.A.
______________________________________
Interbanca S.p.A.
______________________________________
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APPENDIX 1
FINANCING CONTRACT
