EXHIBIT 75
EXECUTION VERSION
AGREEMENT
DATED 12TH JANUARY, 2005
2,400,000,000 euro
REVOLVING CREDIT FACILITY
FOR
OLIMPIA S.P.A.
ARRANGED BY
BANCA INTESA S.P.A., MCC S.P.A., UNICREDIT BANCA MOBILIARE S.P.A.,
CALYON S.A. SUCCURSALE XX XXXXXX, XXXXXX XXXXXXX BANK INTERNATIONAL LIMITED,
MILAN BRANCH AND SOCIETE GENERALE, SUCCURSALE DI MILANO
AS MANDATED LEAD ARRANGERS
WITH
BANCA DI ROMA S.P.A.
AS FACILITY AGENT
CONTENTS
CLAUSE PAGE
1. Interpretation......................................................... 1
2. Facility ..............................................................12
3. Purpose ...............................................................14
4. Conditions Precedent ..................................................15
5. Utilisation - Loans ...................................................16
6. Repayment .............................................................18
7. Prepayment, Cancellation and Collateral ...............................18
8. Interest ..............................................................24
9. Terms .................................................................25
10. Market Disruption ....................................................26
11. Taxes ................................................................27
12. Increased Costs ......................................................29
13. Mitigation ...........................................................30
14. Payments .............................................................30
15. Representations ......................................................32
16. Information Covenants ................................................35
17. Financial Covenants ..................................................37
18. General Covenants ....................................................37
19. Events of Default ....................................................39
20. The Administrative Parties ...........................................42
21. Evidence and Calculations ............................................47
22. Fees .................................................................47
23. Indemnities and Break Costs ..........................................48
24. Expenses .............................................................49
25. Amendments and Waivers ...............................................50
26. Changes to the Parties ...............................................51
27. Disclosure of Information ............................................54
28. set-off 55 29. Pro Rata Sharing ......................................56
30. Severability .........................................................57
31. Counterparts .........................................................57
32. Notices ..............................................................57
33. Language .............................................................58
34. Governing Law ........................................................59
35. Enforcement ..........................................................59
Schedule
Original Parties..........................................................60
Conditions Precedent Documents............................................61
Form of Request...........................................................63
Form of Transfer Certificate..............................................64
Form of Compliance Certificate............................................66
Security Agreements.......................................................67
Release Certificate.......................................................68
Signatories ..................................................69
THIS AGREEMENT is dated 12TH January, 2005
BETWEEN:
(15) OLIMPIA S.P.A. (the COMPANY);
(16) BANCA INTESA S.P.A., MCC S.P.A., UNICREDIT BANCA MOBILIARE S.P.A., CALYON
S.A. SUCCURSALE XX XXXXXX, XXXXXX XXXXXXX BANK INTERNATIONAL LIMITED,
MILAN BRANCH AND SOCIETE GENERALE, SUCCURSALE DI MILANO as arrangers (in
this capacity the MANDATED LEAD ARRANGERS);
(17) BANCA INTESA S.P.A., MCC S.P.A., AND UNICREDIT BANCA MOBILIARE S.P.A as
global coordinators (in this capacity the GLOBAL COORDINATORS);
(18) THE FINANCIAL INSTITUTIONS listed in Allegato 1 (Original Parties) as
original lenders (the ORIGINAL LENDERS); and
(19) BANCA DI ROMA S.P.A. as facility agent (in this capacity the FACILITY
AGENT).
IT IS AGREED as follows:
15. INTERPRETATION
15.1 DEFINITIONS
In this Agreement:
ADMINISTRATIVE PARTY means a Mandated Lead Arranger or the Facility
Agent.
A EXISTING INDEBTEDNESS means indebtedness incurred under:
(a) a 1,800,000,000 (euro) revolving facility agreement entered into by
the Company on 30th October, 2001 with INTESABCI S.p.A. and UNICREDIT
BANCA MOBILIARE S.p.A. as Mandated Lead Arrangers and Bookrunners and
BANCA DI ROMA S.p.A. as Facility Agent, Security Agent and Collateral
Monitoring Agent (the OCTOBER FACILITY); and
(b) a 200,000,000 (euro) revolving credit facility entered into by the
Company on 19th August, 2004 with Mediobanca S.p.A.; and
(c) a 100,000,000 (euro) revolving credit facility entered into by the
Company on 19th December, 2003 with Banca di Roma S.p.A.
AFFILIATE means a Subsidiary or a Holding Company of a person or any other
Subsidiary of that Holding Company.
ANTONVENETA LOAN AGREEMENT means the 180,759,915 (euro) loan agreement entered
into by the Company on 3rd October, 2001 with Banca Antoniana Popolare Veneta
S.c.a.r.l..
AVAILABILITY PERIOD means:
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(a) when designated TRANCHE A, the period from and including the Closing Date
to and including the date falling two months after the Closing Date;
(b) when designated TRANCHE B, the period from and including the date of this
Agreement to and including the Final Maturity Date (subject to the Term
selected being one, two, three or six months or such other period agreed
by the Company and the Lenders subject always to such period not ending
after the Final Maturity Date); and
(c) when designated TRANCHE C, the period from and including the Closing Date
to and including the Expiry Date.
BREAK COSTS means the amount (if any) which a Lender is entitled to receive
under Clause 37.3 (Break Costs) as compensation if any part of a Loan or overdue
amount is repaid or prepaid on a date other than the last day of the Term
applicable to that amount.
BUSINESS DAY means a day (other than a Saturday or a Sunday) on which banks are
open for general business in London and Milan and which is also a TARGET Day.
CALCULATION DATE means the first Business Day of each month following the date
of this Agreement.
CASH means cash, including cash in a current bank account:
(i) that is not subject to a Security Interest other than a Security Interest
under a Security Agreement, or
(ii) the repayment of such cash is not contingent on the satisfaction of any
condition relating to the performance by the Company of its obligations.
CASH DEPOSITS means time deposits of cash for a term not exceeding 90 days with
a bank or financial institution with a short term rating of at least A2 by
Standard and Poor's Corporation or P2 granted by Xxxxx'x Investors Services, Inc
and to which the Company alone is beneficially entitled and so long as (i) such
cash is not subject to a Security Interest other than a Security Interest under
a Security Agreement or (ii) the repayment of such cash is not contingent on the
satisfaction of any condition relating to the performance by the Company of its
obligations.
CASH EQUIVALENTS means Cash, Cash Deposits and/or Marketable Securities.
C EXISTING INDEBTEDNESS means indebtedness incurred under:
(a) a 250,000,000 (euro) bond issued by the Company on 20th November, 2001 to
Monte dei Paschi di Siena S.p.A.; and
(b) a 1,032,920,000 (euro) bond issued by the Company on 5th October, 2001 to
Xxxx X.X., of which approximately 2.8 (euro) million, as a nominal value,
was still outstanding as at 30 September 2004.
CLOSING DATE means the date on which the first utilisation is made under the
Facility.
COLLATERAL means the TI Shares, the TI Convertible Bonds, the TI Warrants and/or
the Cash Equivalents.
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COLLATERAL VALUE means the aggregate value of the TI Shares, the TI Convertible
Bonds, the TI Warrants and the Cash Equivalents secured in favour of the Lenders
from time to time pursuant to the terms of a Security Agreement. Other than
during the negotiation period referred to in Clause 21.3(a)(ii)(C) (Mandatory
prepayment - change of control), such aggregate value shall be calculated as
follows:
(a) the value of the TI Shares shall be calculated using the price determined
monthly on the Calculation Date by the Facility Agent by reference to the
average quoted price (prezzo ufficiale) on the Milan stock exchange of
Telecom Italia S.p.A. ordinary shares for the preceding 25 consecutive
Trading Days;
(b) the value of the TI Convertible Bonds shall be calculated using the price
determined monthly on the Calculation Date by the Facility Agent by
reference to the average quoted price (prezzo ufficiale) of TI
Convertible Bonds on the Milan stock exchange for the preceding 25
consecutive Trading Days;
(c) the value of the TI Warrants shall be calculated using the price
determined monthly on the Calculation Date by the Facility Agent by
reference to the average quoted price (prezzo ufficiale) of TI Warrants
on the Milan stock exchange for the preceding 25 consecutive Trading
Days;
(d) the value of the Marketable Securities shall be calculated using the
price determined monthly on the Calculation Date by the Facility Agent by
reference to the average quoted price of each Marketable Security on the
relevant Italian market for the preceding 25 Business Days; and
(e) the value of the Cash and Cash Deposits shall be calculated by reference
to the principal amount of the Cash or Cash Deposit plus accrued interest
in each case calculated on the Calculation Date,
it being agreed that (i) if there is a suspension from trading of a security
(the SUSPENDED SECURITY) of not more than seven Trading or Business Days, as the
case may be, and accordingly the quoted price for the preceding 25 consecutive
Trading Days or, in the case of paragraph (d) above, Business Days, is not
available, the value of the Suspended Security shall, in relation to any
affected Calculation Date, be calculated by reference to the last 25 Trading
Days or Business Days (as the case may be) on which the Suspended Security was
not suspended from trading; or (ii) where the suspension from trading of a
Suspended Security is for a period of greater than seven Trading or Business
Days, as the case may be, the value of the Suspended Security shall be
calculated by an independent expert nominated by the Facility Agent after
consultation with the Company.
COMMITMENT means:
(a) for an Original Lender:
(i) the amount set out opposite its name in the fifth column of
Allegato 1 (Original Parties); and
(ii) when designated TRANCHE A, TRANCHE B OR TRANCHE C, the amount set
out opposite its name in the second, third or fourth column
(respectively) of Allegato 1 (Original Parties),
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in each case under the heading COMMITMENTS and the amount of any other
Commitment it acquires under this Agreement; and
(b) for any other Lender, the amount of any Commitment it acquires under this
Agreement,
to the extent not cancelled, transferred or reduced under this Agreement.
COMPLIANCE CERTIFICATE means a certificate substantially in the form of Allegato
5 (Form of Compliance Certificate) setting out the calculations of the financial
covenants.
DEMERGER means a demerger or direct transfer to, or assumption by, Hopa or an
Affiliate of Hopa of a percentage of the assets and liabilities of the Company
equal to the aggregate shareholding held by Hopa and/or any Affiliate of Hopa in
the Company at the relevant time.
EDIZIONE FINANCE INTERNATIONAL S.A. means Edizione Finance International S.A.,
having its registered office in Xxxxx xx X'Xxxxxx 0, X-0000 Xxxxxxxxxx.
EDIZIONE HOLDING S.P.A. means Edizione Holding S.p.A. having its registered
office in Xxx Xxxxxxxx 00, 00000 Xxxxxxx, Xxxxx.
EURIBOR means for a Term of any Loan or overdue amount in euro:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for that Term of that Loan or overdue
amount, the arithmetic mean (rounded upward to four decimal places) of
the rates as supplied to the Facility Agent at its request quoted by the
Reference Banks to leading banks in the European interbank market,
as of 11.00 a.m. (Milan time) on the Rate Fixing Day for the offering of
deposits in euro for a period comparable to that Term.
EURO means the single currency of the Participating Member States.
EVENT OF DEFAULT means an event specified as such in Clause 33 (Events of
Default).
EXPIRY DATE means the 20 November 2006 or any other later date agreed by the
Company with holders of the MPS Bond as the maturity date for that bond provided
that under no circumstances shall such later date fall after 20 May 2007.
FACILITY means:
(a) the Tranche A revolving credit facility referred to in Clause 16.1(a)
(Facility);
(b) the Tranche B revolving credit facility referred to in Clause 16.1(b)
(Facility); and
(c) the Tranche C revolving credit facility referred to in Clause 16.1(c)
(Facility).
FACILITY OFFICE means the office(s) notified by a Lender to the Facility Agent:
(a) on or before the date it becomes a Lender; or
(b) by not less than five Business Days' notice,
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as the office(s) through which it will perform its obligations under this
Agreement.
FEE LETTER means any letter entered into by reference to this Agreement between
one or more Administrative Parties and the Company setting out the amount of
certain fees referred to in this Agreement.
FINAL MATURITY DATE means the fifth anniversary of the date of this Agreement.
FINANCE DOCUMENT means:
(a) this Agreement;
(b) any Security Agreement;
(c) any other document designated in writing as such by both the Facility Agent
and the Company.
FINANCE PARTY means a Lender or an Administrative Party.
FINANCIAL INDEBTEDNESS means without double counting and excluding shareholders'
loans, any indebtedness of the Company in respect of:
(a) borrowed money;
(b) any amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock;
(c) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with GAAP, be treated as a finance or
capital lease;
(d) any derivative transaction not entered into in connection with the 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 (other than any receivables to the extent
they are sold or discounted on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward sale
or purchase agreement) required by GAAP to be shown as a borrowing in the
"Civilistico" of the Company; and
(g) financial guarantees.
GAAP means the accounting principles issued in Italy by Xxxxxxxxx Nazionale dei
Dottori Commercialisti e dei Ragionieri or, in their absence, the accounting
principles issued by the International Accounting Standards Board or any other
accounting principles generally accepted in Italy.
HOLDING COMPANY of any other person, means a company in respect of which that
other person is a Subsidiary.
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HOLINVEST means Holinvest S.p.A., having its registered office in Xxxxx
Xxxxxxxxxx 00, 00000 Xxxxxxx, Xxxxx.
HOPA means Hopa S.p.A., having its registered office in Xxxxx Xxxxxxxxxx 00,
00000 Xxxxxxx, Xxxxx.
IMPOSTA SOSTITUTIVA means the imposta sostitutiva provided by article 15 e.s. of
the Italian Presidential Decree No. 601/1973.
INCREASED COST means:
(a) an additional or increased cost; or
(b) a reduction of an amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party but only to the extent
attributable to that Finance Party having entered into this Agreement or funding
or performing its obligations under this Agreement.
INTERBANCA LOAN AGREEMENT means the 77,468,534 (euro) loan agreement entered
into by the Company on 3rd October, 2001 with Interbanca S.p.A..
LENDER means:
(a) an Original Lender; or
(b) any person which becomes a Lender after the date of this Agreement.
LOAN means the principal amount of each borrowing under this Agreement or the
principal amount outstanding of that borrowing.
MAJORITY LENDERS means, at any time, Lenders:
(a) whose share in the outstanding Loans and whose undrawn Commitments then
aggregate 51 per cent. or more of the aggregate of all the outstanding
Loans and the undrawn Commitments of all the Lenders;
(b) if there is no Loan then outstanding, whose undrawn Commitments then
aggregate 51 per cent. or more of the Total Commitments; or
(c) if there is no Loan then outstanding and the Total Commitments have been
reduced to zero, whose Commitments aggregated 51 per cent. or more of the
Total Commitments immediately before the reduction.
MARGIN means the rate per annum calculated in accordance with Clause 22.3
(Margin adjustments).
MARKETABLE SECURITIES means debt securities denominated in euro issued or
guaranteed by the government or central bank of, the United States, Japan,
Germany, the United Kingdom, Italy, Canada or France which are not convertible
into any other form of security, rated at least AA (by Standard & Poor's Ratings
Services) or equivalent and which have a maturity not exceeding 12 months and
which are not subject to a Security Interest other than a Security Interest
under a Security Agreement.
6
MATERIAL ADVERSE EFFECT means a material adverse effect on the financial
condition of the Company which will cause the Company to be unable to perform
its payment obligations under this Agreement.
MATURITY DATE means the last day of the Term of a Loan.
MPS BOND means the (euro)250,000,000 bond convertible into Telecom Italia Mobile
S.p.A. shares issued by the Company on 14 November 2001 and subscribed by Monte
dei Paschi di Siena S.p.A..
MPS LOAN AGREEMENT means the 516,456,000 (euro) loan agreement entered into by
the Company on 3rd October, 2001 with Monte dei Paschi di Siena S.p.A..
NET FINANCIAL POSITION means the amount set out as "posizione finanziaria xxxxx"
in financial statements ("bilancio civilistico") of the Company determined
(subject to Clause 30.1) in accordance with GAAP as at December 2004.
ORIGINAL FINANCIAL STATEMENTS means the audited financial statements of the
Company for the year ended 31 December 2003.
PARTICIPATING MEMBER STATE means a member state of the European Communities that
adopts or has adopted the euro as its lawful currency under the legislation of
the European Community for Economic and Monetary Union.
PARTY means a party to this Agreement.
PIRELLI & C. S.P.A. means Pirelli & C. S.p.A., having its registered office in
xxx X. Xxxxx 00, 00000 Xxxxx, Xxxxx.
PERMITTED TRANSFEREE means:
(a) in the case of Pirelli & C. S.p.A. or any Permitted Transferee of Pirelli &
C. S.p.A., any Subsidiary of Pirelli & C. S.p.A.; and
(b) in the case of Edizione Finance International S.A. or any Permitted
Transferee of Edizione Finance International S.A., any company that is, or
is a wholly owned Subsidiary of, Edizione Holding S.p.A.
PRO RATA SHARE means:
(a) for the purpose of determining a Lender's share in a utilisation of the
Facility, the proportion which its Commitment bears to the Total
Commitments; and
(b) for any other purpose on a particular date:
(i) the proportion which a Lender's share of the Loans (if any) bears to
all the Loans;
(ii) if there is no Loan outstanding on that date, the proportion which a
Lender's Tranche A Commitment, Tranche B Commitment or Tranche C
Commitment bears respectively to the Total Tranche A Commitments, the
Total Tranche B Commitments or the Total Tranche C Commitments (as the
case may be) on that date; or
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(iii) if the Total Commitments have been cancelled, the proportion which a
Lender's Commitment bore to the Total Commitments immediately before
being cancelled.
QUALIFYING LENDER means a Lender which at that time:
(a) is authorised or licensed to carry out banking activities within the
territory of the Republic of Italy, and qualifies as a "banca autorizzata
in Italia" pursuant to paragraph 2(d) of legislative Decree No. 385 dated
1st September, 1993 and lends through a Facility Office in the Republic of
Italy; or
(b) is a branch office in the Republic of Italy of an institution which is
authorised or licensed in a country which is a member state of the European
Union to carry out banking activities; and
in each case is deemed the ultimate beneficial owner for tax purposes of any
payments received under the Finance Documents and is tax resident in the
Republic of Italy pursuant to applicable Italian tax laws for the purposes of
payments received under the Finance Documents and any such payment is booked in
its accounting records and considered as its own business income ("reddito
d'impresa") according to Article 81 or 152(1) as the case may be of Presidential
Decree No. 917 of 22nd December, 1986 as amended and substituted from time to
time.
RATE FIXING DAY means the second TARGET Day before the first day of a Term.
REFERENCE BANKS means the Facility Agent, Unicredit Banca d'Impresa S.p.A.,
JPMorgan Chase Bank and Societe Generale S.A. and any other bank or financial
institution appointed as such by the Facility Agent under this Agreement.
RELEASE CERTIFICATE means a certificate executed and delivered by the Company
substantially in the form of Allegato 7 (Release Certificate).
REPEATING REPRESENTATIONS means the representations which are deemed to be
repeated under Clause 29.13 (Times for making representations).
REQUEST means a request for a Loan, substantially in the form of Allegato 3
(Form of Request).
ROLLOVER LOAN means one or more Loans:
(a) made or to be made on the same day that a maturing Loan is due to be
repaid;
(b) the aggregate amount of which is equal to or less than the maturing Loan;
and
(c) made or to be made for the purpose of refinancing a maturing Loan.
SCREEN RATE means the percentage rate per annum determined by the Banking
Federation of the European Union, for the relevant currency and Term displayed
on Telerate Screen page 248 or if such page is not available on the relevant
Reuters page. If the relevant pages are replaced or the service ceases to be
available, the Facility Agent (in agreement with the Company acting reasonably
and after consultation with the Lenders) may specify another page or service
displaying the appropriate rate. If no such page or service displays an
appropriate rate or agreement is not reached within 3 Business Days, the rate
will be established by the Reference Banks.
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SECURITY AGREEMENT means each security agreement listed in Allegato 6 (Security
Agreements) and any other security agreement required to be entered into in
accordance with the terms of this Agreement.
SECURITY INTEREST means any mortgage, pledge, lien, charge, or other security
interest securing any obligation of any person.
SUBSIDIARY means an entity of which a person has direct or indirect control or
owns directly or indirectly more than 50 per cent. of the voting capital or
similar right of ownership and controlling an entity for this purpose means
holding more than 50 per cent. of its voting rights.
SUPER MAJORITY LENDERS means, at any time, Lenders:
(a) whose share in the outstanding Loans and whose undrawn Commitments then
aggregate 66 2/3 per cent. or more of the aggregate of all the outstanding
Loans and the undrawn Commitments of all the Lenders;
(b) if there is no Loan then outstanding, whose undrawn Commitments then
aggregate 66 2/3 per cent. or more of the Total Commitments; or
(c) if there is no Loan then outstanding and the Total Commitments have been
reduced to zero, whose Commitments aggregated 66 2/3 per cent. or more of
the Total Commitments immediately before the reduction.
TARGET DAY means a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer payment system is open for the settlement of
payments in euro.
TAX means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same).
TAX DEDUCTION means a deduction or withholding for or on account of Tax from a
payment under a Finance Document.
TAX PAYMENT means a payment made by the Company to a Finance Party in any way
relating to a Tax Deduction or under any indemnity given by the Company in
respect of Tax under any Finance Document.
TELECOM ITALIA S.P.A. means Telecom Italia S.p.A., having its registered office
in xxxxxx Xxxxxx 0, 00000 Xxxxx, Xxxxx.
TERM means each period determined under this Agreement by reference to which
interest on a Loan or an overdue amount is calculated.
TI CONVERTIBLE BONDS means debt securities issued by Telecom Italia S.p.A. and
listed on the Milan stock exchange that are freely convertible into ordinary
shares in the capital of Telecom Italia S.p.A.
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TI SHARES means ordinary issued and voting shares in Telecom Italia S.p.A..
TI WARRANTS means warrants for the purchase or subscription of ordinary shares
in the capital of Telecom Italia S.p.A. listed on the Milan Stock Exchange.
TOTAL COMMITMENTS means:
(a) the aggregate of the Commitments of all the Lenders, set out in the fifth
column of Allegato 1 (Original Parties) under the heading Total
Commitments; and
(b) when designated TRANCHE A, TRANCHE B or TRANCHE C, the aggregate of the
Commitments of all the Lenders set out in the second, third or fourth
column (respectively) of Allegato 1 (Original Parties) under the heading
Total Commitments.
TOTAL OUTSTANDINGS means at any time, the aggregate of all outstanding Loans,
then outstanding.
TRADING DAYS means a day on which the Milan stock exchange is open for trading.
TRANCHE A means the tranche described Clause 16.1(a) (Facility).
TRANCHE B means the tranche described in Clause 16.1(b) (Facility).
TRANCHE C means the tranche described in Clause 16.1(c) (Facility).
TRANSFER CERTIFICATE means a certificate, substantially in the form of Allegato
4 (Form of Transfer Certificate) or any other form agreed between the Facility
Agent and the Company.
UTILISATION DATE means each date on which the Facility is utilised.
VTL means, on any date, the percentage determined by the following formula:
CV
X 100
---------------
TO
where:
CV means the Collateral Value of the Collateral secured in favour of the Lenders
under a Security Agreement on that date taking into account any additions or
releases of Collateral pursuant to a Security Agreement on that date; and
TO means the Total Outstandings on that date taking into account any proposed
utilisations on that date and any repayments and prepayments due to be made on
that date.
15.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) an AMENDMENT includes a supplement, novation, restatement or
re-enactment and AMENDED will be construed accordingly;
10
(ii) ASSETS includes properties, revenues and rights which are treated as
assets pursuant to GAAP;
(iii) an AUTHORISATION includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or notarisation;
(iv) an obligation to CONSULT means to inform and discuss, but shall under
no circumstances mean that any decision to be made following
consultation is subject to approval or agreement;
(v) INDEBTEDNESS includes any unconditional obligation (whether incurred
as principal or as surety) for the payment or repayment of money;
(vi) KNOW YOUR CUSTOMER REQUIREMENTS are the identification checks that a
Finance Party requests in order to meet its obligations under any
applicable law or regulation to identify a person who is (or is to
become) its customer;
(vii) a PERSON includes any individual, firm, company, corporation,
unincorporated association or body (including a partnership, trust,
joint venture or consortium), government, state, agency, organisation
or other entity whether or not having separate legal personality;
(viii) a REGULATION includes any regulation, rule, official directive or
guideline (whether or not having the force of law but, if not having
the force of law, being of a type with which any person to which it
applies is accustomed to comply) of any governmental,
inter-governmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(ix) a currency is a reference to the lawful currency for the time being of
the relevant country; (x) an Event of Default being OUTSTANDING or
continuing means that it has not been remedied or waived; (xi) a
provision of law is a reference to that provision as extended,
applied, amended or re-enacted and includes any subordinate
legislation;
(xii) a Clause, a Subclause or a Schedule is a reference to a clause or
subclause of, or a schedule to, this Agreement; (xiii) a Party or any
other person includes its successors in title, permitted assigns and
permitted transferees; (xiv) a Finance Document or another document is
a reference to that Finance Document or other document as amended; and
(xv) a time of day is a reference to Milan time.
(b) Unless the contrary intention appears, a reference to a MONTH or MONTHS is
a reference to a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month or the
calendar month in which it is to end, except that:
11
(i) if the numerically corresponding day is not a Business Day, the period
will end on the next Business Day in that month (if there is one) or
the preceding Business Day (if there is not);
(ii) if there is no numerically corresponding day in that month, that
period will end on the last Business Day in that month; and (iii)
notwithstanding subparagraph (i) above, a period which commences on
the last Business Day of a month will end on the last Business Day in
the next month or the calendar month in which it is to end, as
appropriate.
(c) Unless expressly provided to the contrary in a Finance Document, a person
who is not a party to a Finance Document may not enforce any of its terms
under the Contracts (Rights of Third Parties) Xxx 0000 and, notwithstanding
any term of any Finance Document, no consent of any third party is required
for any variation (including any release or compromise of any liability) or
termination of any Finance Document.
(d) Unless the contrary intention appears:
(i) a reference to a Party will not include that Party if it has ceased to
be a Party under this Agreement;
(ii) a word or expression used in any other Finance Document or in any
notice given in connection with any Finance Document has the same
meaning in that Finance Document or notice as in this Agreement; and
(iii) any obligation of the Company under the Finance Documents which is
not a payment obligation remains in force for so long as any payment
obligation of the Company is or may be outstanding under the Finance
Documents.
(e) The headings in this Agreement do not affect its interpretation.
15.3 COMMITMENT REFERENCES
References to the Commitment of Xxxxxx Xxxxxxx Bank International Limited,
Milan Branch in relation to Tranche A, Tranche B and Tranche C, shall be
construed as references to the aggregate Commitment in relation to Tranche
A, Tranche B and Tranche C of Xxxxxx Xxxxxxx Bank International Limited,
Milan Branch and Xxxxxx Xxxxxxx European Funding, Inc. (in such proportions
as Xxxxxx Xxxxxxx Bank International Limited notifies to the Facility Agent
from time to time) and Xxxxxx Xxxxxxx European Funding, Inc. is a party as
a Lender to give effect to such Commitment (as so notified).
16. FACILITY
16.1 FACILITY
Subject to the terms of this Agreement, the Lenders make available to the
Company the following revolving credit facilities:
(a) TRANCHE A: a revolving credit facility under which the Lenders shall when
requested by the Company pursuant to a Request, make:
12
(i) Loans during the Tranche A Availability Period or pursuant to Clause
16.2(a) (Additional Borrowings); and
(ii) Rollover Loans from and including the date of this Agreement to and
including the Final Maturity Date,
in each case under Tranche A denominated in euros in an aggregate principal
amount not exceeding the Total Tranche A Commitments;
(b) TRANCHE B: a revolving credit facility under which the Lenders shall when
requested by the Company pursuant to a Request, make:
(i) Loans during the Tranche B Availability Period; and
(ii) Rollover Loans from and including the date of this Agreement to and
including the Final Maturity Date,
in each case under Tranche B denominated in euros in an aggregate principal
amount not exceeding the Total Tranche B Commitments;
(c) TRANCHE C: a revolving credit facility under which the Lenders shall when
requested by the Company pursuant to a Request, make:
(i) Loans during the Tranche C Availability Period or pursuant to Clause
16.2(b) (Additional Borrowings); and (ii) Rollover Loans from and
including the date of this Agreement to and including the Final
Maturity Date,
in each case under Tranche C denominated in euros in an aggregate principal
amount not exceeding the Total Tranche C Commitments.
16.2 ADDITIONAL BORROWINGS
(a) Any amount of a Tranche A Loan prepaid in accordance with Clause 21.3
(Mandatory prepayment - change of control), but only to the extent that (i)
the obligation to prepay arose as a result of an event set out in Clause
21.3(a)(i), 21.3(a)(iii) and 21.3(a)(iv) occurring; (ii) such event has
been remedied and (iii) the remedy was effected within three months of the
underlying event occurring, Clause 21.4 (Mandatory prepayment for VTL
requirement) or Clause 7.5 (Voluntary prepayment) or repaid on the last day
of its Term other than to the extent that a Rollover Loan refinanced it or
as a result of a mandatory prepayment under Clauses 21.1 (Mandatory
prepayment - illegality), 21.2 (Mandatory Prepayment - Unlawfulness) or
Clause 21.3 (Mandatory prepayment - change of control) (other than in the
circumstances set out above) may (subject to the conditions precedent to
utilisation set-out in this Agreement and to the amount reborrowed not
exceeding the amount so prepaid or repaid) be reborrowed in whole or in
part at any time up to and including the Final Maturity Date (subject
always to the Term selected being 1, 2, 3 or 6 months or such other period
as the Company and the Lenders agree and provided always that such period
does not end after the Final Maturity Date) provided that any such Loan is
utilised either (a) to purchase TI Shares or (b) for other general
corporate purposes consistent with the object of the Company as detailed in
section 2 of the by laws of the Company in force as at 4th November 2004.
13
(b) Any amount of a Tranche C Loan prepaid in accordance with Clause 21.3
(Mandatory prepayment - change of control), but only to the extent that (i)
the obligation to prepay arose as a result of an event set out in Clause
21.3(a)(i), 21.3(a)(iii) and 21.3(a)(iv) occurring, (ii) such event has
been remedied and (iii) the remedy was effected within three months of the
underlying event occurring, Clause 21.4 (Mandatory prepayment for VTL
requirement) or Clause 7.5 (Voluntary prepayment) or repaid on the last day
of its Term other than to the extent that a Rollover Loan refinanced it or
as a result of a mandatory prepayment under Clauses 21.1 (Mandatory
prepayment - illegality), 21.2 (Mandatory Prepayment - Unlawfulness) or
Clause 21.3 (Mandatory prepayment - change of control) (other than in the
circumstances set out above) may (subject to the conditions precedent to
utilisation set-out in this Agreement and to the amount reborrowed not
exceeding the amount so prepaid or repaid) be reborrowed in whole or in
part at any time up to and including Final Maturity Date (subject always to
the Term selected being 1, 2, 3 or 6 months or such other period as the
Company and the Lenders agree and provided always that such period does not
end after the Final Maturity Date) provided that any such Loan is utilised
either (a) to purchase TI Shares or (b) for other general corporate
purposes consistent with the object of the Company as detailed in section 2
of the by laws of the Company in force as at 4th November 2004.
16.3 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
Unless all the Finance Parties and the Company agree otherwise:
(a) The obligations of a Finance Party under the Finance Documents are several;
(b) failure by a Finance Party to perform its obligations does not affect the
obligations of any other Party under the Finance Documents;
(c) no Finance Party is responsible for the obligations of any other Finance
Party under the Finance Documents;
(d) the rights of a Finance Party under or in connection with the Finance
Documents are separate and independent rights;
(e) a Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce those rights; and
(f) any debt arising under the Finance Documents to a Finance Party is a
separate and independent debt.
17. PURPOSE
17.1 PURPOSE
(a) The proceeds of Tranche A shall solely be utilised:
(i) to refinance in full the A Existing Indebtedness; and
(ii) in the circumstances described in Clause 16.2(a), to finance the
purchase of TI Shares, and for other general corporate purposes
consistent with the object of the Company as detailed in section 2 of
the by-laws of the Company in force as at 4th November, 2004.
14
(b) The proceeds of Tranche B shall solely be utilised for discharging costs,
interest (other than interest in respect of Tranche B), fees, commission
and expenses incurred in connection with the Facility and for general
corporate purposes, including the purchase of TI Shares.
(c) The proceeds of Tranche C shall solely be utilised: (i) to refinance in
full the C Existing Indebtedness including costs, interest, fees,
commission and expenses incurred or accrued thereunder or in respect
thereof; and (ii) in the circumstances described in Clause 16.2(b), to
finance the purchase of TI Shares, and for general corporate purposes
consistent with the object of the Company as detailed in section 2 of the
by-laws of the Company in force as at 4th November, 2004.
(d) Notwithstanding anything else in this Agreement, the Company acknowledges
and agrees that it must not use the proceeds of any Loan for the purpose of
any real estate transaction which may be effected before the Final Maturity
Date.
17.2 NO OBLIGATION TO MONITOR
No Finance Party is bound to monitor or verify the utilisation of the Facility.
18. CONDITIONS PRECEDENT
18.1 CONDITIONS PRECEDENT DOCUMENTS
No Request may be given until the Facility Agent has notified the Company and
the Lenders that it has received all of the documents and evidence set out in
Allegato 2 (Conditions precedent documents) in form and substance satisfactory
to the Facility Agent, acting reasonably. The Facility Agent must give this
notification to the Company and the Lenders promptly upon being so satisfied.
18.2 CONDITIONS PRECEDENT TO FIRST UTILISATION UNDER TRANCHE A AND TRANCHE B
The obligations of each Lender to participate in the first utilisation under
Tranche A and the first utilisation under Tranche B are subject to the further
conditions precedent that the Facility Agent has notified the Company and the
Lenders (which it shall do promptly) that:
(a) in the case of the first utilisation under Tranche A or Tranche B
(whichever occurs first), it has received the Security Agreement listed in
paragraph (a) of Allegato 6 (Security Agreements) in form and substance
satisfactory to the Facility Agent; and
(b) in the case of the first utilisation under Tranche A or Tranche B
(whichever occurs first), on the Utilisation Date for that Loan, VTL is
equal to or greater than 130 per cent. and, in the case of the first
utilisation of Tranche A or Tranche B (whichever of those Tranches which is
not utilised first), on or before the Utilisation Date for that Loan,
additional Collateral has been secured in favour of the Lenders under a
Security Agreement for this purpose so that on that Utilisation Date the
VTL, looking solely at the Tranche A or, as the case may be, the Tranche B
Loan to be made on that Utilisation Date and that additional Collateral
secured in favour of the Lenders pursuant to a Security Agreement, is equal
to or greater than 130 per cent,
15
18.3 CONDITIONS PRECEDENT TO FIRST UTILISATION UNDER TRANCHE C
The obligations of each Lender to participate in each utilisation under Tranche
C (other than a Rollover Loan or a Loan to be made in the circumstances
described in Clause 16.2(b)) up until the date on which all of Tranche C is
drawn down are subject to the further conditions precedent that the Facility
Agent has notified the Company and the Lenders (which it shall do promptly)
that:
(a) it has received the Security Agreement listed in paragraph (b) of Allegato
6 (Security Agreements) in form and substance satisfactory to the Facility
Agent; and
(b) on or before the Utilisation Date for that Loan, additional Collateral has
been secured in favour of the Lenders under a Security Agreement for this
purpose so that on that Utilisation Date the VTL, looking solely at that
Loan and that additional Collateral secured in favour of the Lenders
pursuant to a Security Agreement, is equal to or greater than 120 per cent.
18.4 FURTHER CONDITIONS PRECEDENT
The obligations of each Lender to participate in any Loan are subject to the
further conditions precedent that
(a) on both the date of the Request and the Utilisation Date for that Loan:
(i) the Repeating Representations are correct in all material respects;
(ii) no Event of Default is outstanding or would result from the Loan; and
(b) for any utilisation under Tranche A, B or C other than the ones described in
Clause 18.2 or 18.3, on the Utilisation Date for that Loan, VTL is greater than
110 per cent.
18.5 MAXIMUM NUMBER OF LOANS
The Company may not deliver a Request if as a result of the proposed Utilisation
15 or more Loans would be outstanding.
19. UTILISATION - LOANS
19.1 GIVING OF REQUESTS
(a) The Company may borrow a Loan by giving to the Facility Agent a duly
completed Request.
(b) Unless the Facility Agent otherwise agrees, the latest time for receipt by
the Facility Agent of a duly completed Request is 3 p.m. one Business Day
before the Rate Fixing Day for the proposed borrowing.
(c) Each Request is irrevocable.
16
19.2 COMPLETION OF REQUESTS
A Request for a Loan will not be regarded as having been duly completed unless:
(a) the Utilisation Date is a Business Day:
(i) in the case of a Loan other than a Rollover Loan, falling within the
applicable Availability Period or made in accordance with Clause 16.2
(Additional Borrowings) and;
(ii) in the case of a Rollover Loan, falling prior to the Final Maturity
Date;
(b) the amount of the Loan requested is:
(i) for the first Request under Tranche A, in a minimum amount of
1,800,000,000 (euro) and for the purpose of refinancing the A Existing
Indebtedness;
(ii) for each subsequent Request under Tranche A, a minimum of 25,000,000
(euro);
(iii) for each request under Tranche B, a minimum of 1,000,000 (euro);
(iv) for each request under Tranche C, a minimum of 25,000,000 (euro);
(v) for the maximum undrawn amount available under the applicable Tranche
of the Facility on the proposed Utilisation Date; or
(vi) such other amount as the Facility Agent may agree; and
(c) the proposed Term complies with this Agreement.
Only one Loan may be requested in a Request.
19.3 ADVANCE OF LOAN
(a) The Facility Agent must promptly notify each Lender of the details of the
requested Loan and the amount of its share in that Loan by no later than 10
a.m. on the Rate Fixing Day for the proposed Utilisation Date.
(b) The amount of each Lender's share of the Loan will be its Pro Rata Share on
the proposed Utilisation Date. (c) No Lender is obliged to participate in a
Loan if, as a result:
(i) its share of Loans under a given Tranche would exceed that Lender's
Commitment in respect of that Tranche; or
(ii) all Loans under a given Tranche would exceed the Total Commitment in
respect of that Tranche; or
(iii) all Loans under the Facility would exceed the Total Commitment for
the Facility.
17
(d) If the conditions set out in this Agreement have been met, each Lender
must, through its Facility Office, advance its share in the Loan through
the Facility Agent to the Company on the Utilisation Date.
20. REPAYMENT
(a) The Company must repay each Loan in full on its Maturity Date.
(b) Subject to the other terms of this Agreement, any amounts repaid under
paragraph (a) above may be re-borrowed.
(c) Without prejudice to the Company's obligation to repay the full amount of
each Loan on its Maturity Date, on the date of any Rollover Loan drawn by
the Company, the amount of the Loan to be repaid and the amount to be drawn
down by the Company on that date shall be netted off against each other so
that the amount of cash which the Company is actually required to pay or,
as the case may be, the amount of cash which the Lenders are actually
required to pay to the Company shall be the net amount.
(d) All amounts outstanding in respect of the Facility must be repaid in full
on the Final Maturity Date and from such date may not be re-borrowed.
21. PREPAYMENT, CANCELLATION AND COLLATERAL 21.1 MANDATORY PREPAYMENT -
ILLEGALITY
(a) A Lender must notify the Company promptly if it becomes aware that it is
unlawful in any applicable jurisdiction for that Lender to perform any of
its obligations under a Finance Document or to fund or maintain its share
in any Loan.
(b) After notification under paragraph (a) above:
(i) the Company must repay or prepay the share of that Lender in each Loan
made to it on the date specified in paragraph (c) below; and
(ii) the Commitment of that Lender will be immediately cancelled.
(c) The date for repayment or prepayment of a Lender's share in a Loan will be:
(i) the last day of the current Term of that Loan; or
(ii) if earlier, and unless otherwise agreed between the Company and the
relevant Lender, the date specified by the Lender in the notification
under paragraph (a) above and which must not be earlier than the last
day of any applicable grace period allowed by law or regulation.
21.2 MANDATORY PREPAYMENT - UNLAWFULNESS
If:
(a) it becomes unlawful for the Company to perform any of its obligations under
the Finance Documents; or
18
(b) any Finance Document is not effective in accordance with its terms or is
declared in writing by the Company to be ineffective in accordance with its
terms for any reason,
then all amounts outstanding under this Agreement shall become due and payable
immediately prior to the performance becoming illegal or the Finance Document
becoming ineffective and the Company shall immediately repay all such amounts in
full and the Total Commitments hereunder shall be irrevocably cancelled in full
(but so that where the unlawfulness described in sub-paragraph (a) above relates
to only some of the Lenders, the Clause 21.2 will only apply to the affected
Lenders' shares of amounts outstanding under this Agreement and only the
affected Lenders' Commitments).
21.3 MANDATORY PREPAYMENT - CHANGE OF CONTROL
(a) For the purposes of this Clause:
a CHANGE OF CONTROL occurs if:
(i) Pirelli & C. S.p.A. and/or Edizione Finance International S.A.. and/or
any Permitted Transferee ceases to own and control in aggregate of at
least 50 per cent. plus one share of the issued share capital and
voting rights of the Company; or
(ii) any person or group of persons acting in concert (other than the
Company and/or its shareholders and/or any Permitted Transferee):
(A) acquires 50 per cent. plus one share of the issued ordinary and
voting share capital of Telecom Italia S.p.A., or
(B) acquires from the Company at least 50 per cent. of its holding of
the issued ordinary and voting shares in Telecom Italia S.p.A.
and is held by CONSOB officially, (i.e. publicly and in writing)
to be officially controlling Telecom Italia S.p.A. and such
decision is not contested in good faith and in any event
dismissed within six months from the making of such decision, or
(C) (other than following an acquisition from the Company of at least
50 per cent. of its holding of the issued ordinary and voting
shares in Telecom Italia S.p.A.) is held by CONSOB officially
(i.e. publicly and in writing) to be officially controlling
Telecom Italia S.p.A. and following negotiations in good faith
for a period of not less than ninety days from such decision,
during which the TI Shares must not be de-listed and the
Collateral Value will be calculated once every 15 Business Days
by reference to the average quoted price for the immediately
preceding 15 Business Day period, the Company and the Facility
Agent (acting on the instructions of the Super Majority Lenders)
have failed to agree a basis on which the Facility may continue
to be available; or
(iii) the Company ceases to be one of the three largest holders of the
issued ordinary and voting shares of Telecom Italia S.p.A.; or
19
(iv) Pirelli & C. S.p.A. and/or any Permitted Transferee of Pirelli & C.
S.p.A ceases to own at least 30 per cent. of the issued ordinary and
voting share capital of the Company,
UNLESS the change of control is, or is a result of, a merger involving the
Company, in which the surviving entity is:
(v) the Company following a merger with a company controlled 100 per cent.
by the Company, or with any other company (provided that Pirelli & C.
S.p.A. and/or Edizione Holding S.p.A. and/or any Permitted Transferee
own and control in aggregate at least 50 per cent. plus one share of
the issued share capital and voting rights of the surviving entity),
or with any shareholder of the Company which on the Signing Date is
not a financial institution or with Telecom Italia S.p.A.; or
(vi) any shareholder of the Company which on the date of this Agreement is
not a financial institution; or
(vii) Telecom Italia S.p.A.; or
(viii) any company which is controlled by one or more of the entities
listed under (vi) and (vii) above, jointly or solely and for this
purpose controlling a company means holding more than 50 per cent of
its voting capital.
(b) The Company, immediately upon becoming aware that a change of control has
occurred, must notify the Facility Agent. (c) Following receipt of a
notification under paragraph (b) above, if the Majority Lenders so require,
by a notice to the Company from the Facility Agent, all outstanding Loans
together with accrued interest and all other amounts accrued under the
Finance Documents shall become due and payable on the date two Business
Days after the date of the notice (or on any later date specified in the
notice)and the effect of such notice from the Facility Agent to the Company
shall be that,
(i) (A) to the extent the notification relates to an event occurring
under any of sub-paragraphs (i), (iii) or (iv) of Clause 21.3(a)
(each a RELEVANT EVENT), the Total Commitments will be
irrevocably and automatically cancelled in full (without the need
for a further notice) on the date falling three months after the
date on which the Relevant Event occurred to the extent on such
date the circumstances referred to in sub-paragraphs (i), (iii)
or (iv)(as the case may be) of 21.3(a) have not ceased to apply;
and
(B) in all other circumstances, the Total Commitments will be
irrevocably cancelled in full; and
(ii) all outstanding Loans together with accrued interest and all other
amounts accrued under the Finance Documents shall become due and
payable on the date two Business Days after the date of the notice (or
on any later date specified in the notice).
Any such notice delivered in accordance with paragraph (c)
above shall take effect in accordance with its terms.
20
21.4 MANDATORY PREPAYMENT FOR VTL REQUIREMENT
(a) On each Calculation Date the Facility Agent shall promptly notify the
Company of the prices to be used for the purposes of the definition of
"Collateral Value" in relation to that Calculation Date and the actual
VTL on that Calculation Date.
(b) If the VTL on a Calculation Date is 110 per cent. or less, the Company
shall, within five Business Days of the receipt of such notification,
notify the Facility Agent whether or not it shall:
(i) secure further Collateral in favour of the Lenders by executing
and registering the appropriate security documents in form and
substance satisfactory to the Facility Agent, acting reasonably,
and delivering additional Collateral to be held under a Security
Agreement, or
(ii) voluntarily prepay the Facility in whole or in part,
in each case in an amount sufficient to ensure that the VTL is equal to
at least 130 per cent. on the date of the further securing or prepayment.
(c) A prepayment of part of a Loan further to point (b) (ii) above must be in
a minimum amount of (euro)25,000,000 for a Tranche A Loan or a Tranche C
Loan, and in a minimum amount of (euro)1,000,000 for a Tranche B Loan.
(d) The Company shall perform the elected option within seven Business Days
from the date of its notification to the Facility Agent.
(e) If the Company either:
(i) fails to notify the Facility Agent within five Business Days as
required under subclause (b) above, or
(ii) notifies the Facility Agent that it does not wish to exercise
either of the options in 21.4(b)(i) and 21.4(b)(ii) above; or
(iii) having elected to exercise either the option in 21.4(b)(i) or
21.4(b)(ii) above, subsequently fails to comply with the
requirements of that option within the seven Business Day period,
then, it must immediately prepay all outstanding Loans together
with accrued interest and all other amounts accrued under the
Finance Documents.
21.5 VOLUNTARY PREPAYMENT
(a) The Company may, by giving not less than five Business Days' (or such
shorter period as the Majority Lenders may agree) prior notice to the
Facility Agent, prepay any Loan at any time in whole or in part.
(b) A prepayment of part of a Loan must be in a minimum amount of
25,000,000(euro) for a Tranche A Loan or a Tranche C Loan, and in a
minimum amount of 1,000,000(euro) for a Tranche B Loan.
21
21.6 AUTOMATIC CANCELLATION
The Commitment of each Lender under a Tranche in relation to any amount
which has never been utilised under that Tranche will be automatically
cancelled at the close of business on the last day of the Availability
Period for that Tranche. The remainder of the Commitment will continue to
be available, subject to the terms of this Agreement, for utilisations as
described in Clause 16.2 and will be irrevocably cancelled in full on the
Final Maturity Date.
21.7 VOLUNTARY CANCELLATION
(a) Subject to paragraph (d) below the Company may, by giving not less than
five Business Days' (or such shorter period as the Majority Lenders may
agree) prior notice to the Facility Agent, cancel the unutilised amount
of the Total Commitments in whole or in part.
(b) Partial cancellation of the Total Commitments must be in a minimum amount
of 50,000,000(euro) or the remaining Commitments in a tranche where this
is less than (euro)50,000,000.
(c) Any cancellation in part will be applied against the Commitment of each
Lender pro rata.
(d) The Company may only cancel in whole or in part the unutilised amounts of
the Tranche C Commitments to the extent that it provides the Facility
Agent with a certificate confirming that it has sufficient funds or
availability of funds to repay in full the amount then outstanding of the
C Existing Indebtedness.
21.8 OPTIONAL REDUCTION OF COLLATERAL
At any time when the VTL then calculated is at least equal to 140 per
cent., the Company may, at its sole discretion, request that the Facility
Agent (on behalf of the Lenders) release part of the Collateral by
delivering a Release Certificate, provided that the VTL remains,
following such release, at least equal to 130 per cent., whereupon, the
Facility Agent (on behalf of the Lenders) shall promptly give effect to
such release with effect from the date on which the Facility Agent has
received a duly completed Release Certificate.
21.9 OPTIONAL ADDITIONAL COLLATERAL
The Company at its option may secure additional Collateral by executing
and registering the appropriate security documents in form and substance
satisfactory to the Facility Agent acting reasonably and delivering
additional Collateral to be held under a Security Agreement, provided
that the VTL, following such injection, will not be less than 120 per
cent.
21.10 INVOLUNTARY PREPAYMENT AND CANCELLATION
(a) If the Company is, or will be, required to pay to a Lender:
(i) a Tax Payment; or
(ii) an Increased Cost,
the Company may while the requirement continues give notice to the
Facility Agent requesting prepayment and cancellation in respect of that
Lender.
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(b) After notification under paragraph (a) above:
(i) the Company must repay or prepay that Lender's share in each Loan
made to it on the date specified in paragraph (c) below; and
(ii) the Commitment of that Lender will be immediately cancelled.
(c) The date for repayment or prepayment of a Lender's share in a Loan will
be:
(i) the last day of the Term for that Loan; or (ii) if earlier, the
date specified by the Company in its notification.
21.11 APPLICATION
All amounts prepaid under Clause 21.4 (Mandatory prepayment for VTL
requirement) or Clause 21.5 (Voluntary prepayment) will be applied in
prepayment of the principal amount of the Loans then outstanding as
specified by the Company and, if not specified, will be applied against
prepayment of the principal amount of Loans then outstanding) under:
(a) first, Tranche A;
(b) second, Tranche B; and
(c) third, Tranche C,
and in each case unless expressly provided otherwise, against, each
Lenders share in the relevant Loans (or each Lender's relevant
Commitment, as the case may be) pro rata.
21.12 RE-BORROWING OF LOANS
(a) Any voluntary prepayment of a Loan may be re-borrowed on the terms of
this Agreement.
(b) Save as otherwise provided in this Agreement, any mandatory or
involuntary prepayment of a Loan may not be re-borrowed excluding for the
avoidance of doubt a prepayment under Clause 21.3(c), Clause 21.4(b)(ii)
or a repayment under Clause 20(a).
21.13 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable and must specify the relevant date(s) and the affected Loans
and Commitments. The Facility Agent must notify the Lenders promptly of
receipt of any such notice.
(b) All prepayments under this Agreement must be made with accrued interest
on the amount prepaid. No premium or penalty is payable in respect of any
prepayment except for Break Costs.
(c) The Majority Lenders may agree a shorter notice period for a voluntary
prepayment or a voluntary cancellation.
(d) No prepayment or cancellation is allowed except in accordance with the
express terms of this Agreement.
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(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(f) If the Facility Agent receives a notice under this Clause 21 (Prepayment,
Cancellation and Collateral) it shall promptly forward a copy of that
notice to either the Company or the affected Lender, as appropriate.
22. INTEREST
22.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Term is the percentage rate
per annum equal to the aggregate of the applicable:
(a) Margin (calculated in accordance with Clause 22.3 (Margin
adjustments) below; and
(b) EURIBOR.
22.2 PAYMENT OF INTEREST
Except where it is provided to the contrary in this Agreement, the
Company must pay accrued interest on each Loan made to it on the last day
of each Term and also, if the Term is longer than six months, on the
dates falling at six-monthly intervals after the first day of its Term.
22.3 MARGIN ADJUSTMENTS
(a) The Margin in respect of the first utilisation under Tranche A and
Tranche B shall be 1.00 per cent. per annum and shall apply for the
duration of its Term.
(b) The Margin for each other Loan will be calculated in accordance with the
table below and shall be determined by the Facility Agent two Business
Days prior to the Utilisation Date by reference to VTL on the Utilisation
Date for such Loan. The Margin so determined by the Facility Agent shall
apply for the duration of that Term.
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COLUMN 2
COLUMN 1 MARGIN
VTL (PER CENT. PER ANNUM)
------------------------------------------------ -------------------------------
Greater than 110 per cent. but less than 130 1.05
per cent.
------------------------------------------------ -------------------------------
Equal to or greater than 130 per cent. but 1.00
less than 150 per cent.
------------------------------------------------ -------------------------------
Equal to or greater than 150 per cent. 0.95
------------------------------------------------ -------------------------------
22.4 INTEREST ON OVERDUE AMOUNTS
(a) If the Company fails to pay any amount payable by it under this
Agreement, it must immediately on demand by the Facility Agent pay
interest on the overdue amount from its due date up to the date of actual
payment, both before and after judgment.
(b) Interest on an overdue amount is payable at a rate determined by the
Facility Agent to be one per cent. per annum above the rate which would
have been payable if the overdue amount had, during the period of
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non-payment, constituted a Loan in the currency of the overdue amount.
For this purpose, the Facility Agent may (acting reasonably):
(i) select successive terms of any duration up to three months; and
(ii) determine the appropriate Rate Fixing Day for that Term.
(c) Notwithstanding paragraph 22.4 (b) above, if the overdue amount is a
principal amount of a Loan and becomes due and payable before the last
day of its current Term, then:
(i) the first Term for that overdue amount will be the unexpired
portion of that Term; and
(ii) the rate of interest on the overdue amount for that first Term
will be one per cent. per annum above the rate then payable on
that Loan.
After the expiry of the first Term for that overdue amount, the rate on
the overdue amount will be calculated in accordance with paragraph 8.4(b)
above.
(d) Interest (if unpaid) on an overdue amount will not be compounded with
that overdue amount at the end of each of its Terms but the accrued
interest will at all times be immediately due and payable.
22.5 NOTIFICATION OF RATES OF INTEREST
The Facility Agent must promptly notify each Party of the determination
of a Margin or a rate of interest under this Agreement.
22.6 INTEREST CAP
For the avoidance of doubt, notwithstanding any other provision hereof,
if at any time the interest rate stated to be payable under this
Agreement would cause a breach of Italian usury law, then the rate of
interest payable under this Agreement shall be capped at the maximum
amount permitted to be payable under Italian usury law.
23. TERMS
23.1 SELECTION
(a) Each Loan has one Term only.
(b) The Company must select the Term for a Loan in the relevant Request.
(c) Subject to the following provisions of this Clause, each Term for a Loan
will be one, two, three or six months or any other period agreed by the
Company and the Lenders.
(d) The Term of the first Loan made under Tranche A may, notwithstanding the
terms of this sub-clause, be the period specified by the Company in the
Request as being the period which matches the period to the next interest
payment date under the October Facility.
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23.2 NO OVERRUNNING THE FINAL MATURITY DATE
If a Term would otherwise overrun the Final Maturity Date, it will be
shortened so that it ends on the Final Maturity Date.
23.3 NOTIFICATION
The Facility Agent must notify each relevant Party of the duration of
each Term promptly after ascertaining its duration.
24. MARKET DISRUPTION
24.1 FAILURE OF A REFERENCE BANK TO SUPPLY A RATE
If EURIBOR is to be calculated by reference to the Reference Banks but a
Reference Bank does not supply a rate by 12.00 noon (Milan time) on a
Rate Fixing Day, the applicable EURIBOR will, subject as provided below,
be calculated on the basis of the rates of the remaining Reference Banks.
24.2 MARKET DISRUPTION
(a) In this Clause, each of the following events is a MARKET DISRUPTION
EVENT:
(i) EURIBOR is to be calculated by reference to the Reference Banks
but no, or only one, Reference Bank supplies a rate by 12.00 noon
(Milan time) on the Rate Fixing Day; or
(ii) the Facility Agent receives by close of business on the Rate
Fixing Day notification from Lenders whose shares in the relevant
Loan exceed 50 per cent. of that Loan that the cost to them of
obtaining matching deposits in the European interbank market is in
excess of EURIBOR for the relevant Term.
(b) The Facility Agent must promptly notify the Company and the Lenders of a
market disruption event.
(c) After notification under paragraph (b) above, the rate of interest on
each Lender's share in the affected Loan for the relevant Term will be
the aggregate of the applicable:
(i) Margin; and
(ii) rate notified to the Facility Agent by that Lender as soon as
practicable, and in any event before interest is due to be paid in
respect of that Term, to be that which expresses as a percentage
rate per annum the cost to that Lender of funding its share in
that Loan from whatever source it may reasonably select.
24.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a market disruption event occurs and the Facility Agent or the Company
so requires, the Company and the Facility Agent must enter into
negotiations for a period of not more than 30 days with a view to
agreeing an alternative basis for determining the rate of interest and/or
funding for the affected Loan.
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(b) Any alternative basis agreed will be, with the prior consent of all the
Lenders, binding on all the Parties.
(c) Should no agreement be reached during the period referred to in paragraph
(a) above and while the market disruption event is continuing, each
Lender (acting reasonably and in good faith) shall communicate to the
Facility Agent its cost of funding its share in the affected Loan as
described in Clause 24.2(c) for each Term and the component of interest
on such Loan for the purposes of Clause 24.2(c)(ii) for that Lender and
that Term shall be the rate so notified.
25. TAXES
25.1 GENERAL
In this Clause TAX CREDIT means a credit against any Tax or any relief or
remission for, or repayment of, any Tax (or its repayment).
25.2 TAX GROSS-UP
(a) The Company must make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required
by law.
(b) If the Company is aware that it must make a Tax Deduction (or that there
is a change in the rate or the basis of a Tax Deduction), it must
promptly notify the Facility Agent. The Facility Agent must then promptly
notify the affected Parties.
(c) If a Tax Deduction is required by law to be made by the Company or the
Facility Agent, the amount of the payment due from the Company will (to
the extent that the beneficiary of such payment is a Qualifying Lender)
be increased to an amount which (after making the Tax Deduction) leaves
an amount equal to the payment which would have been due if no Tax
Deduction had been required.
(d) If the Company is required to make a Tax Deduction, it must make the
minimum Tax Deduction allowed by law or by the relevant double taxation
treaty applicable and must make any payment required in connection with
that Tax Deduction within the time allowed by law.
(e) Within three months of making either a Tax Deduction or a payment
required in connection with a Tax Deduction, the Company must deliver to
the Facility Agent for the relevant Finance Party evidence satisfactory
to that Finance Party (acting reasonably) that the Tax Deduction has been
made or (as applicable) the appropriate payment has been paid to the
relevant taxing authority.
(f) Each Finance Party shall provide all documents required and co-operate
with the Company in completing any applicable procedural formalities
necessary for the Company to make payments without a Tax Deduction or
with minimum Tax Deduction allowed by law or by the relevant double
taxation treaty applicable.
25.3 TAX INDEMNITY
(a) Except as provided below, the Company shall pay to a Finance Party an
amount equal to any loss, liability or cost which that Finance Party
determines has been suffered for or on account of Tax by that Finance
Party in respect of a Finance Document.
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(b) Paragraph (a) above does not apply to any Tax assessed on a Finance Party
under the laws of the jurisdiction in which:
(i) that Finance Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that Finance Party is
treated as resident for tax purposes; or
(ii) that Finance Party's Facility Office is located in respect of
amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income or
revenue received or receivable by that Finance Party. However, any
payment deemed to be received or receivable, including any amount treated
as income but not actually received by the Finance Party, such as a Tax
Deduction, will not be treated as net income received or receivable for
this purpose.
(c) A Finance Party making or intending to make a claim under paragraph (a)
above must promptly and, in any event, within two months of becoming
aware of the relevant loss, liability or cost, notify the Facility Agent
of the event which will give, or has given, rise to the claim following
which the Facility Agent shall notify the Company. A Finance Party shall
not be entitled to payment of any amount under paragraph (b) above which
is attributable to any period before the date two months before the date
the Finance Party notifies the Facility Agent of the loss, liability or
cost.
25.4 TAX CREDIT
If the Company makes a Tax Payment and the relevant Finance Party acting
reasonably and in good faith determines that:
(a) a Tax Credit is attributable either to an increased payment of
which that Tax Payment forms part or to that Tax Payment; and
(b) it has used and retained that Tax Credit,
the Finance Party must pay an amount to the Company which that Finance
Party determines acting reasonably and in good faith will leave it (after
that payment) in the same after-tax position as it would have been if the
Tax Payment had not been required to be made by the Company. A Finance
Party paying a Tax Credit shall provide the Company with reasonable
details of its calculation of the Tax Credit, subject to Clause 27.2
(Conduct of business by a Finance Party).
25.5 STAMP TAXES
The Company must pay and indemnify each Finance Party against any stamp
duty, registration or other similar Tax (including, for the avoidance of
doubt, Imposta Sostitutiva) payable in connection with the entry into,
performance or enforcement of any Finance Document, except for any such
Tax payable in connection with the entry into a Transfer Certificate.
25.6 VALUE ADDED TAXES
(a) Any amount payable under a Finance Document by the Company is exclusive
of any value added tax or any other Tax of a similar nature which might
be chargeable in connection with that amount. If any such Tax is
chargeable, the Company must pay to the Finance Party (in addition to and
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at the same time as paying that amount) an amount equal to the amount of
that Tax.
(b) Where a Finance Document requires any Party to reimburse a Finance Party
for any costs or expenses, that Party must also at the same time pay and
indemnify the Finance Party against all value added tax or any other Tax
of a similar nature incurred by the Finance Party in respect of those
costs or expenses but only to the extent that the Finance Party (acting
reasonably) determines that it is not entitled to credit or repayment
from the relevant tax authority in respect of the Tax.
26. INCREASED COSTS 26.1 INCREASED COSTS
Except as provided below in this Clause, the Company must pay to a
Finance Party the amount of any Increased Cost incurred by that Finance
Party as a result of:
(a) the introduction of, or any change in, or any change in the
prevailing interpretation, administration or application of, any
law or regulation; or
(b) compliance with any law or regulation, made after the date of this
Agreement.
26.2 EXCEPTIONS
The Company need not make any payment for an Increased Cost to the extent
that the Increased Cost is:
(a) compensated for under another Clause or would have been but for an
exception to that Clause;
(b) a tax, or attributable to a tax, on the overall net income of a
Finance Party or any of its Affiliates;
(c) attributable to any period before the date falling two months
before the Finance Party notifies the Facility Agent (which as
soon as is reasonably practicable, notify the Company) of the
Increased Cost; or
(d) attributable to a Finance Party or its Affiliate wilfully failing
to comply with any law or regulation.
26.3 CLAIMS
(a) A Finance Party intending to make a claim for an Increased Cost must
notify the Facility Agent of the circumstances giving rise to and the
amount of the claim within two months after becoming aware of it,
following which the Facility Agent will promptly notify the Company.
(b) Each Finance Party must, as soon as practicable after a demand by the
Facility Agent (which shall make this demand if so requested by the
Company) provide a certificate containing reasonable evidence of the
amount of its Increased Cost.
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27. MITIGATION
27.1 MITIGATION
(a) Each Finance Party must, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which
result or would result in:
(i) any Tax Payment or Increased Cost being payable to that Finance
Party;
(ii) that Finance Party being able to exercise any right of prepayment
and/or cancellation under this Agreement by reason of any
illegality; or
(iii) that Finance Party incurring any cost of complying with the
minimum reserve requirements of the European Central Bank
(iv) it being unlawful for the Company to perform any of its
obligations under the Finance Documents,
including transferring its rights and obligations under the Finance
Documents to an Affiliate or changing its Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of the
Company under the Finance Documents.
(c) The Company must indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of any step taken
by it under this Subclause.
(d) A Finance Party is not obliged to take any step under this Subclause if,
in the opinion of that Finance Party (acting reasonably), to do so might
be prejudicial to it.
27.2 CONDUCT OF BUSINESS BY A FINANCE PARTY
No term of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs (Tax
or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it in respect of Tax or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its
affairs (Tax or otherwise) or any computation in respect of Tax.
28. PAYMENTS
28.1 PLACE
Unless a Finance Document specifies that payments under it are to be made
in another manner, all payments by a Party (other than the Facility
Agent) under the Finance Documents must be made to the Facility Agent to
its account at such office or bank in Milan, as it may notify to that
Party for this purpose by not less than five Business Days' prior notice.
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28.2 FUNDS
Payments under the Finance Documents to the Facility Agent must be made
for value on the due date at such times and in such funds as the Facility
Agent may specify to the Party concerned as being customary at the time
for the settlement of transactions in that currency in the place for
payment.
28.3 DISTRIBUTION
(a) Each payment received by the Facility Agent under the Finance Documents
for another Party must, except as provided below, be made available by
the Facility Agent to that Party by payment (as soon as practicable after
receipt) to its account with such office or bank in Milan, as it may
notify to the Facility Agent for this purpose by not less than five
Business Days' prior notice.
(b) The Facility Agent may apply any amount received by it for the Company in
or towards payment (as soon as practicable after receipt) of any amount
due from the Company under the Finance Documents.
(c) Where a sum is paid to the Facility Agent under this Agreement for
another Party, the Facility Agent is not obliged to pay that sum to that
Party until it has established that it has actually received it. However,
the Facility Agent may assume that the sum has been paid to it, and, in
reliance on that assumption, make available to that Party a corresponding
amount. If it transpires that the sum has not been received by the
Facility Agent, that Party must immediately on demand by the Facility
Agent refund any corresponding amount made available to it together with
interest on that amount from the date of payment to the date of receipt
by the Facility Agent at a rate calculated by the Facility Agent to
reflect its cost of funds.
28.4 CURRENCY
(a) Unless a Finance Document specifies that payments under it are to be made
in a different manner, the currency of each amount payable under the
Finance Documents is determined under this Clause.
(b) Amounts payable in respect of Taxes, fees, costs and expenses are payable
in the currency in which they are incurred.
(c) Each other amount payable under the Finance Documents is payable in
euros.
28.5 NO SET-OFF OR COUNTERCLAIM
All payments made by the Company under the Finance Documents must be made
without and free and clear of any deduction for set-off or counterclaim.
28.6 BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment will instead be the next
Business Day.
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate payable
on the original due date.
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28.7 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment insufficient to discharge all
the amounts then due and payable by the Company under the Finance
Documents, the Facility Agent must apply that payment towards the
obligations of the Company under the Finance Documents in the following
order:
(i) FIRST, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Administrative Parties under the Finance
Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued interest,
fee or commission due but unpaid under this Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal amount
due but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Facility Agent must, if so directed by the Super Majority Lenders,
vary the order set out in subparagraphs (a)(ii) to (iv) above.
(c) This Subclause will override any appropriation made by the Company.
28.8 TIMING OF PAYMENTS
If a Finance Document does not provide for when a particular payment is
due, that payment will be due within twenty Business Days of demand by
the relevant Finance Party.
29. REPRESENTATIONS
29.1 REPRESENTATIONS
The representations set out in this Clause are made by the Company to
each Finance Party.
29.2 STATUS
(a) It is a limited liability company, duly incorporated and validly existing
under the laws of Italy.
(b) It has the power to own its assets and carry on its business as it is
being conducted.
29.3 LEGAL VALIDITY
Subject to any general principles of law limiting its obligations as
referred to in any legal opinion delivered under this Agreement each
Finance Document and each Fee Letter to which it is a party is its
legally binding, valid and enforceable obligation.
29.4 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents and the Fee Letters do not
conflict with:
32
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement which is binding upon it or any of its assets.
29.5 NO EVENT OF DEFAULT
No Event of Default is outstanding or will result from the making of a
Loan.
29.6 PARI PASSU RANKING
The Company's payment obligations under the Finance Documents rank at
least pari passu with all its other unsecured and unsubordinated payment
obligations other than payment obligations which have priority by
operation of law applicable generally to companies.
29.7 AUTHORISATIONS
All authorisations and licences required by the Company under Italian law
for the purpose of enabling the Company to execute and perform its
obligations under the Finance Documents and the Fee Letters or for the
purpose of the validity and enforceability of, or admissibility into
evidence in Italy of, the Finance Documents and the Fee Letters have been
obtained or effected (as appropriate) and are in full force and effect,
subject, in the case of the Security Agreements, to appropriate
formalities and registration requirements.
29.8 LITIGATION
No litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency which are likely to be adversely
determined and which, if adversely determined, would have a Material
Adverse Effect, have been commenced against it.
29.9 JURISDICTION/GOVERNING LAW
(a) The choice of English Law as the governing law of this Agreement will be
recognised and enforced in Italy, subject to any general principles of
law which are specifically referred to in any legal opinion delivered
pursuant to this Agreement.
(b) Any judgment obtained in England in relation to this Agreement will be
recognised and enforced in Italy, subject to any general principles of
law which are specifically referred to in any legal opinion delivered
pursuant to this Agreement.
29.10 PRINCIPAL BUSINESS
Its principal business is that of a holding company or that which would
result from a merger or demerger which is not prohibited under this
Agreement.
29.11 TITLE TO ASSETS
(a) No Security Interest exists over the assets of the Company which is
prohibited under Subclause 32.3 (Negative pledge).
33
(b) The Company is the legal owner free of any Security Interest (subject to
the registration of the release of the Security Interest securing the
October Facility) of any Collateral which it purports to grant as
security to the Lenders under any Security Agreement.
29.12 NO WINDING UP OR INSOLVENCY
(a) It is not unable to pay its debts as they fall due or insolvent;
(b) it has not admitted its inability to pay its debts as they fall due;
(c) no moratorium has been declared in respect of any of its indebtedness;
(d) no step has been taken by the Company with a view to a moratorium under
(c) above or similar arrangement with any of its creditors;
(e) no meeting of its shareholders has been convened for the purpose of
considering any resolution for, to petition for or to file documents with
a court or any registrar for, its winding-up, administration or
dissolution or any such resolution has been passed (except, in each case,
where in connection with or for the purpose of an amalgamation, demerger,
merger or reconstruction permitted under this Agreement);
(f) no person has presented a petition, or files documents with a court or
any registrar, for its winding-up, administration or dissolution (except,
in each case, where in connection with or for the purpose of an
amalgamation, demerger, merger or reconstruction not prohibited under
this Agreement), other than where the petition is frivolous or vexatious
and is being contested in good faith and is in any event discharged
within 60 days of the petition being filed;
(g) no order for its winding-up, administration or dissolution has been made
which is not being contested in good faith and with due diligence
provided that to the extent that any such order is being so contested it
is in any event discharged within 60 days of the date of the relevant
order;
(h) no liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or similar
officer has been appointed in respect of it or a substantial part of its
assets and any such appointment is not being contested in good faith and
with due diligence provided that to the extent that any such appointment
is being so contested it is in any event discharged within 60 days of the
date of the relevant appointment;
(i) no shareholder, director or other officer has requested the appointment
of, or given notice of its intention to appoint, a liquidator, trustee in
bankruptcy, judicial custodian, compulsory manager, receiver,
administrative receiver, administrator or similar officer;
(j) no other analogous step or procedure has been taken in any jurisdiction
having regard to the foregoing provisions of this Clause 29.12 which is
not being contested in good faith and with due diligence provided that to
the extent that any such step or procedure is being so contested, it is
in any event discharged within 30 days of the date of the relevant step
or procedure; and
(k) no attachment, sequestration, distress or execution has affected any of
its asset(s) having an aggregate value of at least (euro)50,000,000 which
has not been discharged within 60 days.
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29.13 TIMES FOR MAKING REPRESENTATIONS
(a) The representations set out in this Clause are made by the Company on the
date of this Agreement.
(b) Save in the case of Subclause:
(i) 29.4(Non-conflict);
(ii) 29.8 (Litigation); and
(iii) 29.10 (Principal Business),
each representation is deemed to be repeated by the Company on the date
of each Request and the first day of each Term.
(c) When a representation is repeated, it is applied to the circumstances
existing at the time of repetition.
30. INFORMATION COVENANTS
30.1 FINANCIAL STATEMENTS
(a) The Company must make available to the Facility Agent its audited
financial statements for each of its financial years ending after the
date of this Agreement to the Facility Agent in sufficient copies for all
the Lenders.
(b) All financial statements must be supplied promptly when publicly
available.
(c) Except as provided to the contrary in this Agreement, each set of
financial statements delivered by the Company pursuant to this Clause
30.1 is to be prepared in accordance with GAAP. If GAAP utilised by the
Company as at 31 December 2004 at any time changes in a way that has or
will have an impact on the calculation to the covenants set our in Clause
31 (Financial Covenants) and/or any calculation under Clause 22.3 (Margin
adjustments) then:
(i) the Company must promptly notify the Facility Agent of such
change;
(ii) the Company and Facility Agent must enter into discussions in good
faith for a period or not more than 30 days to discuss the
consequences of such change on the calculations of the covenants
in this Clause 31 (Financial Covenants) with a view to agreeing
any amendments required to be made to this Agreement to place the
Company and the Lenders in the same position as they would have
been in if the change to GAAP had not happened. Any agreement
between the Company and the Facility Agent pursuant to this Clause
will be, with the prior consent of the Super Majority Lenders,
binding on all the Parties. If no agreement is reached on the
required amendments to this Agreement, the Company must supply
with each set of financial statements a reconciliation statement
in sufficient but reasonable detail to allow the covenants in
Clause 31 (Financial Covenants) to be tested on the basis of
prevailing GAAP at that time.
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30.2 COMPLIANCE CERTIFICATE
(a) The Company must supply to the Facility Agent a Compliance Certificate
twice a year (on or before 31 October and within 30 calendar days after
the annual audited financial statements become publicly available in
final form) setting out (in reasonable detail) computations as to
compliance with Clause 31 (Financial Covenants) as at the date as at
which the balance sheet in those financial statements was drawn up.
(b) A Compliance Certificate must be signed by one authorised signatory of
the Company.
30.3 NOTIFICATION OF EVENT OF DEFAULT
The Company must notify the Facility Agent of any Event of Default (and
the steps, if any, being taken to remedy it) promptly upon becoming aware
of its occurrence.
30.4 KNOW YOUR CUSTOMER REQUIREMENTS
(a) If:
(i) the introduction of or any change in (or in the prevailing
interpretation, administration or application of) any law or
regulation made after the date of this Agreement;
(ii) any change in the status of the Company after the date of this
Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of its rights
and obligations under this Agreement to a party that is not a
Lender prior to such assignment or transfer,
obliges the Facility Agent or any Lender (or, in the case of paragraph
(iii) above, any prospective new Lender) to comply with "know your
customer" or similar identification procedures in circumstances where the
necessary information is not already available to it, the Company shall
promptly upon the request of the Facility Agent or any Lender supply, or
procure the supply of, such documentation and other evidence which is not
prevented from doing so by any law or regulation, as is reasonably
requested by the Facility Agent (for itself or on behalf of any Lender)
or any Lender (for itself or, in the case of the event described in
paragraph (iii) above, on behalf of any prospective new Lender) in order
for the Facility Agent, such Lender or, in the case of the event
described in paragraph (iii) above, any prospective new Lender to carry
out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents.
(b) Each Lender shall promptly upon the request of the Facility Agent supply
or procure the supply of, such documentation and other evidence as is
reasonably requested by the Facility Agent (for itself) in order for the
Facility Agent to carry out and be satisfied it has complied with all
necessary "know your customer" or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated
in the Finance Documents.
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31. FINANCIAL COVENANTS 31.1 INTERPRETATION
(a) Except as provided to the contrary in this Agreement, an accounting term
used in this Clause is to be construed in accordance with the principles
applied in connection with the Original Financial Statements.
(b) No item must be credited or deducted more than once in any calculation
under this Clause. 31.2 VTL
On each Utilisation Date VTL must comply with the applicable provisions
of Clause 18.2, Clause 18.3 or Clause 18.4(b).
31.3 NET FINANCIAL POSITION
Net Financial Position of the Company to be less than 4,000,000,000(euro)
(measured on a half-yearly basis).
32. GENERAL COVENANTS
32.1 GENERAL
The Company agrees to be bound by the covenants set out in this Clause
relating to it.
32.2 AUTHORISATIONS
The Company must promptly obtain, maintain and comply with the terms of
any authorisation or licence required under Italian law or regulation to
enable it to perform its obligations under, or necessary to ensure the
validity or enforceability or admissibility into evidence of, any Finance
Document.
32.3 NEGATIVE PLEDGE
(a) Except as provided below, the Company must own, free from any Security
Interest at signing. TI Shares, TI Convertible Bonds and/or TI Warrants
(the BUFFER), the value of which (calculated on the Closing Date by the
Facility Agent by reference to the average quoted price (prezzo
ufficiale) of TI Shares, TI Convertible Bonds and/or TI Warrants on the
Milan stock exchange for the preceding 25 consecutive Trading Days) is
equal to 115 per cent. of the sum (as at the date of this Agreement) of
the outstanding principal amounts under MPS Loan Agreement, Antonveneta
Loan Agreement and Interbanca Loan Agreement (the "UNSECURED LOAN
AGREEMENTS"), until their respective repayments. The obligation in this
sub-clause is the "NEGATIVE PLEDGE".
(b) The Negative Pledge will cease to apply, and security may be created over
the Buffer, if and to the extent that:
(i) the Unsecured Loan Agreements are refinanced or rescheduled by
borrowings with all the scheduled repayment dates falling at least
one month after the Final Maturity Date; or
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(ii) the Unsecured Loan Agreements are refinanced or rescheduled by
borrowings with any scheduled repayment date falling sooner than
one month after the Final Maturity Date (the Company having used
reasonable efforts to refinance or reschedule as described in (i))
and the Mandated Lead Arrangers have, following a request from the
Company, either consented to that refinancing or have provided the
refinancing themselves. The consent of the Mandated Lead Arrangers
will be deemed to have been given if none of them1 commit to
provide a refinancing facility on terms equivalent to that offered
to the Company by one or more financial institutions (reflecting
economic terms consistent with market conditions at the time the
provision of the facility is required), with a term at least three
months longer than that offered by the other financial institution
or institutions, and with an initial VTL of 130 per cent. within
ten Business Days of the Company's request or do not execute loan
documentation evidencing the terms of that facility.
(c) To the extent that the loans under the Unsecured Loan Agreements are only
refinanced or rescheduled as described in (ii) above in part, the
Negative Pledge will cease to apply to a percentage of the Buffer equal
to the percentage of the loans referred to in subclause (a) above being
refinanced.
(d) Should the loans under the Unsecured Loan Agreements be prepaid, repaid
or, utilised to finalise the Demerger, partially or totally, the number
of TI Shares, TI Convertible Bonds and/or TI Warrants which are subject
to the Negative Pledge will be reduced accordingly.
(e) TI Shares, TI Convertible Bonds and/or TI Warrants subject to the
Negative Pledge may be utilised by the Company for the purpose of
securing further Collateral under Clause 21.4 (Mandatory prepayment for
VTL requirement). In this event there will be no breach of the Negative
Pledge in respect of the TI Shares, TI Convertible Bonds and/or TI
Warrants so utilised.
The Negative Pledge does not apply to any Security Interest constituted
by the Security Agreements.
32.4 MERGERS
The Company may not enter into any legal amalgamation, or legal merger or
legal demerger otherwise than with the prior written consent of the
Majority Lenders (not be unreasonably withheld), except for:
(a) mergers with any entity that the Company controls (solely or
jointly), directly or indirectly and any entity that controls
(solely or jointly), directly or indirectly, the Company and for
this purpose controlling an entity means holding more than 50 per
cent of its voting capital;
(b) (i) a merger (fusione per incorporazione) between the Company and
a company which is 100 per cent. owned by the Company and to which
a percentage of the assets and liabilities of Holinvest have
previously been transferred by way of a demerger (scissione
xxxxxxxx) or (ii) the direct transfer to, or assumption by, the
Company of such a percentage of such a company's assets and
liabilities; and
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(c) the Demerger.
32.5 HEDGING
The Company must within six months of the Closing Date enter into
interest rate hedging arrangements for a period ending on the Final
Maturity Date in respect of at least 60 per cent. of the aggregate amount
of the Loans outstanding (measured half-yearly). Such hedging
arrangements will take into consideration the economics of the Company
and the market conditions prevailing at that time and will be aimed at
fixing or capping the effective interest rate payable by the Company in
respect of the applicable percentage of the Loans. At the Facility
Agent's request, the Company shall provide promptly reasonable evidence
thereof subject to the provisions of Clause 41.
33. EVENTS OF DEFAULT
33.1 EVENTS OF DEFAULT
Each of the events set out in this Clause is an Event of Default.
33.2 NON-PAYMENT
The Company does not pay on the due date any amount payable by it under
the Finance Documents in the manner required under the Finance Documents,
unless (other than as the case of a non-payment under Clause 21.4
(Mandatory prepayment for VTL requirement)) the non-payment is remedied
within five Business Days of the due date or (in the case of a
non-payment under Clause 7.4 (Mandatory prepayment for VTL requirement))
the non-payment is caused by technical or administrative error and is
remedied within three Business Days of the due date.
33.3 BREACH OF OTHER OBLIGATIONS
(a) The Company does not comply with any term of Clause 32.5 (Hedging) unless
such non-compliance is remedied within two months of the earlier of the
Facility Agent giving notice of that non-compliance to the Company.
(b) The Company does not comply with any other term of the Finance Documents
not already referred to in this Clause, unless the non-compliance:
(i) is capable of remedy; and
(ii) is remedied within twenty days of the Facility Agent giving notice
of that non-compliance to the Company.
33.4 MISREPRESENTATION
A representation made or repeated by the Company in any Finance Document
or in any Request is incorrect in any material respect when made or
deemed to be repeated, unless the circumstances giving rise to the
misrepresentation:
(a) are capable of remedy; and
(b) are remedied within twenty days of the Facility Agent giving
notice of the misrepresentation to the Company.
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33.5 CROSS-DEFAULT
Any of the following occurs in respect the Company:
(a) any of its Financial Indebtedness is not paid when due (after the
expiry of any applicable grace period and any grace period in the
event of default clause in the agreement under which that
Financial Indebtedness was advanced);
(b) any of its Financial Indebtedness:
(i) becomes prematurely due and payable;
(ii) is placed on demand; or
(iii) is entitled to be declared due and payable by its creditor
prior to its specified maturity (and remains entitled to be
declared so due and payable for a period of five Business
Days),
in each case, as a result of an event of default (howsoever
described);
unless the aggregate amount of Financial Indebtedness falling within all
or any of paragraphs (a) or (b) above is less than 30,000,000(euro) or
its equivalent.
33.6 INSOLVENCY
Any of the following occurs in respect of the Company:
(a) it is unable to pay its debts as they fall due or insolvent;
(b) it admits its inability to pay its debts as they fall due;
(c) it suspends making payments on its debts generally or announces an
intention to do so, except where (i) the obligation to pay is
being contested in good faith, and (ii) the suspension is not due
to financial difficulties;
(d) by reason of actual or anticipated financial difficulties, it
begins negotiations with its creditors for the rescheduling of its
indebtedness; or
(e) a moratorium is declared in respect of its indebtedness.
33.7 INSOLVENCY PROCEEDINGS
(a) Except as provided below, any of the following occurs in respect of the
Company:
(i) any step is taken by the Company with a view to a moratorium or a
composition, assignment or similar arrangement with any of its
creditors;
(ii) a meeting of its shareholders is convened for the purpose of
considering any resolution for, to petition for or to file
documents with a court or any registrar for, its winding-up,
administration or dissolution or any such resolution is passed
(except, in each case, where in connection with or for the purpose
of an amalgamation, demerger, merger or reconstruction permitted
under the Finance Documents);
40
(iii) any person presents a petition, or files documents with a court or
any registrar for, for its winding-up, administration or
dissolution (except, in each case, where in connection with or for
the purpose of an amalgamation, demerger, merger or reconstruction
permitted under the Finance Documents) other than where the
petition or filing is frivolous or vexatious and is being
contested in good faith and is in any event discharged within 60
days;
(iv) an order for its winding-up, administration or dissolution is
made;
(v) any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver,
administrator or similar officer is appointed in respect of it or
a substantial part of its assets and any such appointment is not
being contested in good faith and with due diligence provided that
to the extent that any such appointment is being so contested it
is in any event discharged within 60 days of the date of the
relevant appointment;
(vi) its shareholders, directors or other officers request the
appointment of, or give notice of their intention to appoint, a
liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or
similar officer; or
(vii) any other analogous step or procedure is taken in any
jurisdiction.
(b) Paragraph (a) does not apply to a petition for winding-up presented by a
creditor which is being contested in good faith and with due diligence
and is discharged or struck out within 60 days.
33.8 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset(s)
of the Company having an aggregate value of at least (euro)50,000,000 and
is not contested in good faith and in any event is not discharged within
60 days.
33.9 EFFECTIVENESS OF FINANCE DOCUMENTS
The Company repudiates a Finance Document or evidences in writing an
intention to repudiate a Finance Document.
33.10 FAILURE TO COMPLY WITH FINAL JUDGMENT
The Company fails to comply with or pay any sum due from it under any
enforceable final judgment or any enforceable final order made or given
by any court of competent jurisdiction, in each case for an aggregate
value of which would have a Material Adverse Effect.
33.11 SECURITY
A Security Agreement ceases to confer Security Interests over the
undertaking, property, assets and rights of the Company over which it
purports to create Security Interests and or those Security Interests are
not first ranking security interests, except where such Security
Interests are released in accordance with this Agreement.
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33.12 ACCELERATION
If an Event of Default is outstanding, the Facility Agent must, if so
instructed by the Super Majority Lenders, by notice to the Company:
(a) cancel all or any part of the Total Commitments; and/or
(b) declare that all or part of any amounts outstanding under this
Agreement are:
(i) immediately due and payable; and/or
(ii) payable on demand by the Facility Agent acting on the
instructions of the Majority Lenders.
Any notice given in accordance with this Subclause will take effect in
accordance with its terms.
34. THE ADMINISTRATIVE PARTIES 34.1 APPOINTMENT AND DUTIES OF THE FACILITY
AGENT
(a) Each Finance Party (other than the Facility Agent) irrevocably appoints
the Facility Agent to act as its agent under the Finance Documents.
(b) Each Finance Party irrevocably authorises the Facility Agent to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically given to it under the Finance
Documents, together with any other incidental rights, powers and
discretions; and
(ii) execute each Finance Document expressed to be executed by the
Facility Agent.
(c) The Facility Agent has only those duties which are expressly specified in
the Finance Documents. Those duties are solely of a mechanical and
administrative nature.
34.2 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, no Arranger has
any obligations of any kind to any other Party in connection with any
Finance Document.
34.3 NO FIDUCIARY DUTIES
Except as specifically provided in a Finance Document, nothing in the
Finance Documents makes an Administrative Party a trustee or fiduciary
for any other Party or any other person. No Administrative Party need
hold in trust any moneys paid to it for a Party or be liable to account
for any interest or profit element on those moneys.
34.4 INDIVIDUAL POSITION OF AN ADMINISTRATIVE PARTY
(a) If it is also a Lender, each Administrative Party has the same rights and
powers under the Finance Documents as any other Lender and may exercise
those rights and powers as though it were not an Administrative Party.
42
(b) Each Administrative Party may:
(i) carry on any business with the Company or its related entities
(including acting as an agent or a trustee for any other
financing); and
(ii) retain any profits or remuneration it receives under the Finance
Documents or in relation to any other business it carries on with
the Company or its related entities.
34.5 RELIANCE
The Facility Agent may:
(a) rely on any notice or document believed by it to be genuine and correct
and to have been signed by, or with the authority of, the proper person;
(b) rely on any statement made by any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his power to
verify;
(c) engage, pay for and rely on professional advisers selected by it
(including those representing a Party other than the Facility Agent); and
(d) act under the Finance Documents through its personnel and agents.
34.6 SUPER MAJORITY LENDERS' AND/OR THE MAJORITY LENDERS' INSTRUCTIONS
(a) The Facility Agent is fully protected if it acts on the instructions of
the Majority Lenders in the exercise of any right, power or discretion or
any matter not expressly provided for in the Finance Documents. Any such
instructions given by the Majority Lenders will be binding on all the
Lenders. In the absence of instructions, the Facility Agent may act as it
considers to be in the best interests of all the Lenders.
(b) The Facility Agent may assume that unless it has received notice to the
contrary, any right, power, authority or discretion vested in any Party
or the Super Majority Lenders and/or the Majority Lenders has not been
exercised.
(c) The Facility Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal or
arbitration proceedings in connection with any Finance Document.
(d) The Facility Agent may require from the Lenders the receipt of security
satisfactory to it, whether by way of payment in advance or otherwise,
against any liability or loss which it may incur in complying with the
instructions of the Super Majority Lenders and/or the Majority Lenders as
the case may be.
34.7 RESPONSIBILITY
(a) No Administrative Party is responsible for the adequacy, accuracy or
completeness of any statement or information (whether written or oral)
made in or supplied in connection with any Finance Document.
(b) No Administrative Party is responsible for the legality, validity,
effectiveness, adequacy, completeness or enforceability of any Finance
Document or any other document.
43
(c) Without affecting the responsibility of the Company for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms that it:
(i) has made, and will continue to make, its own independent appraisal
of all risks arising under or in connection with the Finance
Documents (including the financial condition and affairs of the
Company and its related entities and the nature and extent of any
recourse against any Party or its assets); and
(ii) has not relied exclusively on any information provided to it by
any Administrative Party in connection with any Finance Document.
34.8 EXCLUSION OF LIABILITY
(a) The Facility Agent is not liable or responsible to any other Finance
Party for any action taken or not taken by it in connection with any
Finance Document, unless directly caused by its gross negligence or
wilful misconduct.
(b) No Party (other than the Facility Agent) may take any proceedings against
any officer, employee or agent of the Facility Agent in respect of any
claim it might have against the Facility Agent or in respect of any act
or omission of any kind by that officer, employee or agent in connection
with any Finance Document. Any officer, employee or agent of the Facility
Agent may rely on this Subclause and enforce its terms under the
Contracts (Rights of Third Parties) Xxx 0000.
(c) The Facility Agent is not liable for any delay (or any related
consequences) in crediting an account with an amount required under the
Finance Documents to be paid by the Facility Agent if the Facility Agent
has taken all necessary steps as soon as reasonably practicable to comply
with the regulations or operating procedures of any recognised clearing
or settlement system used by the Facility Agent for that purpose.
(d) (i) Nothing in this Agreement will oblige any Administrative Party
to satisfy any know your customer requirement in relation to the
identity of any person on behalf of any Finance Party.
(ii) Each Finance Party confirms to each Administrative Party that it
is solely responsible for any know your customer requirements it
is required to carry out and that it may not rely on any statement
in relation to those requirements made by any other person.
34.9 EVENT OF DEFAULT
(a) The Facility Agent is not obliged to monitor or enquire whether an Event
of Default has occurred. The Facility Agent is not deemed to have
knowledge of the occurrence of a Event of Default.
(b) If the Facility Agent:
(i) receives notice from a Party referring to this Agreement,
describing an Event of Default and stating that the event is an
Event of Default; or
(ii) is aware of the non-payment of any principal, interest or fee
payable to a Finance Party (other than the Facility Agent or an
Arranger) under this Agreement,
it must promptly notify the other Finance Parties.
44
34.10 INFORMATION
(a) The Facility Agent must promptly forward to the person concerned the
original or a copy of any document which is delivered to the Facility
Agent by a Party for that person.
(b) Except where a Finance Document specifically provides otherwise, the
Facility Agent is not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
(c) Except as provided above, the Facility Agent has no duty:
(i) either initially or on a continuing basis to provide any Lender
with any credit or other information concerning the risks arising
under or in connection with the Finance Documents (including any
information relating to the financial condition or affairs of the
Company or its related entities or the nature or extent of
recourse against any Party or its assets) whether coming into its
possession before, on or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Lender in accordance
with a Finance Document, to request any certificate or other
document from the Company.
(d) In acting as the Facility Agent, the agency division of the Facility
Agent is treated as a separate entity from its other divisions and
departments. Any information acquired by the Facility Agent which, in its
opinion, is acquired by it otherwise than in its capacity as the Facility
Agent may be treated as confidential by the Facility Agent and will not
be treated as information possessed by the Facility Agent in its capacity
as such.
(e) The Facility Agent is not obliged to disclose to any person any
confidential information supplied to it by or on behalf of the Company
solely for the purpose of evaluating whether any waiver or amendment is
required in respect of any term of the Finance Documents.
(f) The Company irrevocably authorises the Facility Agent to disclose to the
other Finance Parties any information which is received by it in its
capacity as the Facility Agent, except for any confidential information
as described in paragraph (e) above.
34.11 INDEMNITIES
(a) Without limiting the liability of the Company under the Finance
Documents, each Lender must indemnify the Facility Agent for that
Lender's Pro Rata Share of any loss or liability incurred by the Facility
Agent in acting as the Facility Agent, except to the extent that the loss
or liability is caused by the Facility Agent's gross negligence or wilful
misconduct.
(b) The Facility Agent may deduct from any amount received by it for a Lender
any amount due to the Facility Agent from that Lender under a Finance
Document but unpaid.
34.12 COMPLIANCE
Each Administrative Party may refrain from doing anything (including
disclosing any information) which might in its reasonable opinion,
constitute a breach of any law or regulation or to be otherwise
actionable at the suit of any person and may do anything which is
necessary to comply with any law or regulation.
45
34.13 RESIGNATION OF THE FACILITY AGENT
(a) The Facility Agent may resign and appoint any of its Affiliates as
successor Facility Agent by giving notice to the other Finance Parties
and the Company.
(b) Alternatively, the Facility Agent may resign by giving notice to the
Finance Parties and the Company, in which case the Majority Lenders may
appoint a successor Facility Agent.
(c) If no successor Facility Agent has been appointed under paragraph (b)
above within 30 days after notice of resignation was given, the Facility
Agent may appoint a successor Facility Agent.
(d) The person(s) appointing a successor Facility Agent must consult with the
Company prior to the appointment.
(e) The resignation of the Facility Agent and the appointment of any
successor Facility Agent will both become effective only when the
successor Facility Agent notifies all the Parties that it accepts its
appointment and agrees to be bound by the terms of the Finance Documents
in its capacity as Facility Agent. On giving the notification, the
successor Facility Agent will succeed to the position of the Facility
Agent and the term FACILITY AGENT will mean the successor Facility Agent.
(f) The retiring Facility Agent must, at its own cost, make available to the
successor Facility Agent such documents and records and provide such
assistance as the successor Facility Agent may reasonably request for the
purposes of performing its functions as the Facility Agent under the
Finance Documents.
(g) Upon its resignation becoming effective, this Clause will continue to
benefit the retiring Facility Agent in respect of any action taken or not
taken by it in connection with the Finance Documents while it was the
Facility Agent, and, subject to paragraph (f) above, it will have no
further obligations under any Finance Document.
(h) After consultation with the Company, the Majority Lenders may, by notice
to the Facility Agent, require it to resign under paragraph (b) above.
34.14 RELATIONSHIP WITH LENDERS
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and as acting through its Facility
Office(s) until it has received not less than five Business Days' prior
notice from that Lender to the contrary.
(b) The Facility Agent may at any time, and must if requested to do so by the
Majority Lenders, convene a meeting of the Lenders.
(c) The Facility Agent must keep a register of all the Parties and supply any
other Party with a copy of the register on request. The register will
include each Lender's Facility Office(s) and contact details for the
purposes of this Agreement.
34.15 NOTICE PERIOD
Where this Agreement specifies a minimum period of notice to be given to
the Facility Agent, the Facility Agent may, at its discretion, accept a
shorter notice period.
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35. EVIDENCE AND CALCULATIONS
35.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this Agreement
are prima facie evidence of the matters to which they relate for the
purpose of any litigation or arbitration proceedings.
35.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents will be made in good faith and set out in
reasonable detail the basis of such rate or amount and will be, in the
absence of manifest error, prima facie evidence of the matters to which
it relates.
35.3 CALCULATIONS
Any interest or fee accruing under this Agreement accrues from day to day
and is calculated on the basis of the actual number of days elapsed and a
year of 360 days.
36. FEES
36.1 FACILITY AGENT'S FEE
The Company must pay to the Facility Agent for its own account an agency
fee in the manner agreed in the Fee Letter between the Facility Agent and
the Company.
36.2 PARTICIPATION FEE
The Company must pay to each Mandated Lead Arranger for its own account a
participation fee in the manner agreed in the Fee Letter between the
Mandated Lead Arrangers and the Company.
36.3 GLOBAL COORDINATORS FEE
The Company must pay to each Global Coordinators for its own account a
coordination fee in the manner agreed in the Fee Letter between the
Global Coordinators and the Company.
36.4 COMMITMENT FEE
(a) The Company must pay a commitment fee to the Facility Agent for the
account of the Lenders computed at the rate of:
(i) 37.5 per cent. per annum of the Margin on the undrawn, uncancelled
amount of each Lender's Tranche A Commitment from time to time
from the Closing Date;
(ii) 37.5 per cent. per annum of the Margin on the undrawn, uncancelled
amount of each Lender's Tranche B Commitment from time to time
from the Closing Date;
(iii) in the case of Tranche C:
47
(A) 0.25 per cent. per annum on the undrawn, uncancelled amount
of each Lender's Tranche C Commitment from time to time
from the Closing Date until and including the date of first
utilisation of Tranche C; and
(B) 37.5 per cent. per annum of the Margin on the undrawn,
uncancelled amount of each Lender's Tranche C Commitment
thereafter.
(b) Accrued commitment fee is payable quarterly in arrear. Accrued commitment
fee is also payable to the Facility Agent for a Lender on the date its
Commitment is cancelled in full.
37. INDEMNITIES AND BREAK COSTS
37.1 CURRENCY INDEMNITY
(a) The Company shall, as an independent obligation, indemnify each Finance
Party against any loss or liability specified in a written demand which
that Finance Party incurs as a consequence of:
(i) that Finance Party receiving an amount in respect of the Company's
liability under the Finance Documents; or
(ii) that liability being converted into a claim, proof, judgment or
order,
in a currency other than the currency in which the amount is
expressed to be payable under the relevant Finance Document.
(b) Unless otherwise required by law, the Company waives any right it may
have in any jurisdiction to pay any amount under the Finance Documents in
a currency other than that in which it is expressed to be payable.
37.2 OTHER INDEMNITIES
(a) The Company shall indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(i) the occurrence of any Event of Default;
(ii) any failure by the Company to pay any amount due under a Finance
Document on its due date, including any resulting from any
distribution or redistribution of any amount among the Lenders
under this Agreement;
(iii) (other than by reason of gross negligence or default by that
Finance Party) a Loan not being made after a Request has been
delivered for that Loan; and
(iv) a Loan (or part of a Loan) not being prepaid in accordance with
this Agreement.
The Company's liability in each case includes any loss or expense
on account of funds borrowed, contracted for or utilised to fund
any amount payable under any Finance Document or any Loan.
(b) The Company must indemnify the Facility Agent against any loss or
liability incurred by the Facility Agent as a result of:
48
(i) investigating any event which the Facility Agent reasonably
believes to be an Event of Default; or
(ii) acting or relying on any notice which the Facility Agent
reasonably believes to be genuine, correct and appropriately
authorised.
37.3 BREAK COSTS
(a) The Company must pay to each Lender its Break Costs in the event of any
Loan or overdue amount being repaid or prepaid on a day other than the
last day of the Term applicable to that amount.
(b) Break Costs are the amount (if any) determined by the relevant Lender by
which:
(i) the interest (excluding Margin) which that Lender would have
received for the period from the date of receipt of all or any
part of its share in a Loan or an overdue amount to the last day
of the applicable Term for that Loan or overdue amount if the
principal or overdue amount received had been paid on the last day
of that Term;
exceeds
(ii) the amount which that Lender would be able to obtain by placing an
amount equal to all or any part of its share in a Loan or an
overdue amount received by it on deposit with a leading bank in
the European interbank market for a period starting on the date of
receipt and ending on the last day of the applicable Term.
(c) Each Lender must supply to the Facility Agent for the Company details of
the amount of any Break Costs claimed by it under this Subclause.
38. EXPENSES
38.1 INITIAL COSTS
The Company must pay to each Administrative Party within 30 days from
demand the amount of all legal fees reasonably incurred by it in
connection with the negotiation, preparation, printing and execution of
the Finance Documents up to an amount specified in a letter from Xxxxx &
Overy to the Company dated 26 November, 2004.
38.2 SUBSEQUENT COSTS
The Company must pay to the Facility Agent the amount of all costs and
expenses (including legal fees) reasonably incurred by it in connection
with:
(a) the negotiation, preparation, printing and execution of any
Finance Document (other than a Transfer Certificate) executed
after the date of this Agreement; and
(b) any amendment, waiver or consent requested by or on behalf of the
Company.
38.3 ENFORCEMENT COSTS
The Company must pay to each Finance Party the amount of all
49
(a) costs and expenses (including legal fees) incurred by it in
connection with the enforcement of any Finance Document; and
(b) all reasonable costs and expenses (including legal fees) incurred
by it in connection with the preservation of any rights under any
Finance Document.
39. AMENDMENTS AND WAIVERS
39.1 PROCEDURE
(a) Except as otherwise provided in this Clause, any term of the Finance
Documents may be amended or waived with the agreement of the Company and
the Majority Lenders. The Facility Agent may effect, on behalf of any
Finance Party, an amendment or waiver allowed under this Clause.
(b) The Facility Agent must promptly notify the other Parties of any
amendment or waiver effected by it under paragraph (a) above. Any such
amendment or waiver is binding on all the Parties.
39.2 EXCEPTIONS
(a) An amendment or waiver which relates to:
(i) The definition of COMPANY (save in case of any of any merger which
is not prohibited pursuant to Clause 32.4 (Mergers));
(ii) the definitions of the SUPER MAJORITY LENDERS and/or the MAJORITY
LENDERS in Clause 15.1 (Definitions);
(iii) an extension of the date of payment of any amount to a Lender
under this Agreement;
(iv) a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fee or other amount payable to a
Lender under this Agreement;
(v) an increase in, or an extension of, a Commitment or the Total
Commitments, or currency of utilisation;
(vi) a term of a Finance Document which expressly requires the consent
of each Lender; or
(vii) this Clause,
may only be made with the consent of all the Lenders.
(b) An amendment or waiver which relates to:
(i) Clauses 18.2(b) (Conditions precedent to first utilisation under
Tranche A and Tranche B) and Clause 18.3(b) (Conditions precedent
to first utilisation under Tranche C)
(ii) Clauses 21.1 (Mandatory prepayment - illegality) and 21.3
(Mandatory prepayment - change of control);
50
(iii) Clause 21.4 (Mandatory prepayment for VTL requirement);
(iv) Clause 31.3 (Net financial position);
(v) a release or amendment of any Security Agreement other than in
accordance with the terms of this Agreement; (
vi) Clause 33.2 (Non-payment);
(vii) Clause 33.5 (Cross-default);
(viii) Clause 33.12 (Acceleration); or
(ix) Clause 40.2 (Assignments and transfers by Lenders) or the right of
a Lender to assign or transfer its rights or obligations under the
Finance Documents,
may only be made with the consent of all the Super Majority
Lenders.
(c) An amendment or waiver which relates to the rights or obligations of an
Administrative Party may only be made with the consent of that
Administrative Party.
(d) A Fee Letter may be amended or waived with the agreement of the
Administrative Party that is a party to that Fee Letter and the Company.
39.3 CHANGE OF CURRENCY
If a change in any currency of a country occurs (including where there is
more than one currency or currency unit recognised at the same time as
the lawful currency of a country), this Agreement will be amended to the
extent the Facility Agent (acting reasonably and after consultation with
the Company) determines is necessary to reflect the change.
39.4 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of that
right.
40. CHANGES TO THE PARTIES
40.1 ASSIGNMENTS AND TRANSFERS BY THE COMPANY
The Company may not assign or transfer any of its rights and obligations
under the Finance Documents without the prior consent of all the Lenders.
51
40.2 ASSIGNMENTS AND TRANSFERS BY LENDERS
(a) A Lender (the EXISTING LENDER) may, subject to the following provisions
of this Subclause, at any time after the date falling 12 months from the
Closing Date assign or transfer (including by way of novation) any of its
rights and obligations under this Agreement to any other bank or
financial institution (the NEW LENDER).
(b) Unless the Company and the Facility Agent otherwise agree, a transfer of
part of a Commitment or rights and obligations under this Agreement by
the Existing Lender must be in a minimum amount of (euro)50,000,000 and
must be pro rata across all Tranches of the Facility.
(c) Unless the Company otherwise agrees, each of the Original Lenders must
retain, and may not assign or transfer:
(i) 75 per cent of their original Commitment (and Loans made under
that percentage of its original Commitment) for the period between
12 months from the Closing Date and 18 months from the Closing
Date; and
(ii) 50 per cent. of their original Commitment (and Loans made under
that percentage of its original Commitment) from the date falling
18 months from the Closing Date.
(d) The consent of the Company is required for any assignment or transfer
unless the New Lender is another Lender or an Affiliate of a Lender or an
Event of Default is outstanding (in which latter case an assignment or
transfer may only be effected without consent if three Business Days'
prior written notice is given to the Company and that notice specifies in
reasonable detail the New Lender's name and address). The consent of the
Company must not be unreasonably withheld or delayed. The Company will be
deemed to have given its consent ten Business Days after the Company is
given notice of the request unless it is expressly refused within that
time.
(e) The Facility Agent is not obliged to execute a Transfer Certificate until
it has completed all know your customer requirements to its satisfaction.
The Facility Agent must promptly notify the Existing Lender and the New
Lender if there are any such requirements.
(f) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with the following
provisions of this Clause; or
(ii) the New Lender confirms to the Facility Agent and the Company in
form and substance satisfactory to the Facility Agent and the
Company that it is bound by the terms of this Agreement as a
Lender. On the transfer becoming effective in this manner the
Existing Lender will be released from its obligations under this
Agreement to the extent that corresponding obligations are validly
assumed by the New Lender.
(g) Unless the Facility Agent otherwise agrees, the New Lender must pay to
the Facility Agent for its own account, on or before the date any
assignment or transfer occurs, a fee of 1,000(euro).
52
(h) Any reference in this Agreement to a Lender includes a New Lender but
excludes a Lender if no amount is or may be owed to or by it under this
Agreement.
40.3 PROCEDURE FOR TRANSFER BY WAY OF NOVATIONS
(a) In this Subclause:
TRANSFER DATE means, for a Transfer Certificate, the later of:
(i) the proposed Transfer Date specified in that Transfer Certificate;
and
(ii) the date on which the Facility Agent executes that Transfer
Certificate.
(b) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the Facility
Agent a duly completed Transfer Certificate;
(ii) the Facility Agent executes it; and
(iii) subject to Clause 40.2(d) the Company countersigns it confirming
its acceptance only where the consent of the Company to such
transfer is required pursuant to the terms of this Agreement
unless that consent is deemed to have been given.
The Facility Agent must execute as soon as reasonably practicable a
Transfer Certificate delivered to it and which appears on its face to be
in order.
(c) Each Party (other than the Existing Lender and the, save where the
Company is required to countersign for the purposes of (b)(iii) New
Lender) irrevocably authorises the Facility Agent to execute any duly
completed Transfer Certificate on its behalf.
(d) On the Transfer Date:
(i) the New Lender will assume the rights and obligations of the
Existing Lender expressed to be the subject of the novation in the
Transfer Certificate in substitution for the Existing Lender; and
(ii) the Existing Lender will be released from those obligations and
cease to have those rights.
(e) The Facility Agent must, as soon as reasonably practicable after it has
executed a Transfer Certificate, send to the Company a copy of that
Transfer Certificate.
40.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDER
(a) Unless expressly agreed to the contrary, an Existing Lender is not
responsible to a New Lender for the legality, validity, adequacy,
accuracy, completeness, performance, effectiveness or enforceability of:
(i) any Finance Document or any other document;
(ii) the financial condition of the Borrower;
53
(iii) any statement or information (whether written or oral) made in or
supplied in connection with any Finance Document; or
(iv) non-performance by the Company of its obligations under any
Finance Document or otherwise,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made, and will continue to make, its own independent appraisal
of all risks arising under or in connection with the Finance
Documents (including the financial condition and affairs of the
Company and its related entities and the nature and extent of any
recourse against any Party or its assets) in connection with its
participation in this Agreement; and
(ii) has not relied exclusively on any information supplied to it by
the Existing Lender in connection with any Finance Document.
(c) Nothing in any Finance Document requires an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause; or
(ii) support any losses incurred by the New Lender by reason of the
non-performance by the Company of its obligations under any
Finance Document or otherwise.
40.5 COSTS RESULTING FROM CHANGE OF LENDER OR FACILITY OFFICE
If:
(a) a Lender assigns or transfers any of its rights and obligations
under the Finance Documents or changes its Facility Office; and
(b) as a result of circumstances existing at the date the assignment,
transfer or change occurs, the Company would be obliged to pay a
Tax Payment or an Increased Cost,
then, unless the assignment, transfer or change is made by a Lender to
mitigate, with the prior written consent of the Company, any
circumstances giving rise to a Tax Payment, Increased Cost or right to be
prepaid and/or cancelled by reason of illegality, the Company need only
pay that Tax Payment or Increased Cost to the same extent that it would
have been obliged to if no assignment, transfer or change had occurred.
41. DISCLOSURE OF INFORMATION
(a) Each Finance Party must keep confidential any information supplied to it
by or on behalf of the Company for the purpose of or in connection with
the Finance Documents including any information provided to the Mandated
Lead Arrangers prior to the date of this Agreement in connection with the
making available of this Facility. However, a Finance Party is entitled
to disclose information:
(i) which is publicly available, other than as a result of a breach by
that Finance Party of this Clause;
54
(ii) in connection with any legal or arbitration proceedings against
the Company;
(iii) if and to the extent required to do so under any law or regulation
or by a court;
(iv) to a governmental, banking, taxation or other regulatory authority
where it is required to make the disclosure;
(v) to its professional advisers for purposes connected with the
Finance Documents and only where those advisers are under a duty
of confidentiality and are aware that the information provided to
them is confidential;
(vi) to the extent allowed under paragraph (b) below; or
(vii) with the agreement of the Company.
(b) A Finance Party may disclose to an Affiliate or any person with whom it
may enter, or has entered into, any kind of transfer, participation or
other agreement in relation to this Agreement (a PARTICIPANT):
(i) a copy of any Finance Document; and
(ii) any information which that Finance Party has acquired under or in
connection with any Finance Document.
However, before a participant may receive any confidential information,
it must agree with the relevant Finance Party, and for the benefit of the
Company, to keep that information confidential on the terms of paragraph
(a) above.
(c) This Clause supersedes any previous confidentiality undertaking given by
a Finance Party in connection with this Agreement prior to it becoming a
Party.
42. SET-OFF
42.1 CONTRACTUAL SET-OFF
The Company authorises each Lender at any time whilst an Event of Default
is continuing to apply any matured credit balance held in cash to which
the Company is entitled on any of its accounts with such Lender in
satisfaction of any sum due and payable by the Company to such Lender
under this Agreement but unpaid. For this purpose, each Lender is
authorised to purchase at market rate with the moneys standing to the
credit of any such account such other currencies as may be necessary to
effect such application. Any Lender exercising its rights under this
Clause shall notify the Company promptly after set-off is applied.
42.2 SET-OFF NOT MANDATORY
No Lender shall be obliged to exercise any right given to it by Clause
42.1 (Contractual set-off).
55
43. PRO RATA SHARING
43.1 REDISTRIBUTION
If any amount owing by the Company under this Agreement to a Lender (the
RECOVERING LENDER) is discharged by payment, set-off or any other manner
other than through the Facility Agent under this Agreement (a RECOVERY),
then:
(a) the recovering Lender must, within three Business Days, supply
details of the recovery to the Facility Agent;
(b) the Facility Agent must calculate whether the recovery is in
excess of the amount which the recovering Lender would have
received if the recovery had been received and distributed by the
Facility Agent under this Agreement; and
(c) the recovering Lender must pay to the Facility Agent an amount
equal to the excess (the REDISTRIBUTION).
43.2 EFFECT OF REDISTRIBUTION
(a) The Facility Agent must treat a redistribution as if it were a payment by
the Company under this Agreement and distribute it among the Lenders,
other than the recovering Lender, accordingly.
(b) When the Facility Agent makes a distribution under paragraph (a) above,
the recovering Lender will be subrogated to the rights of the Finance
Parties which have shared in that redistribution.
(c) If and to the extent that the recovering Lender is not able to rely on
any rights of subrogation under paragraph (b) above, the Company will owe
the recovering Lender a debt which is equal to the redistribution,
immediately payable and of the type originally discharged.
(d) If:
(i) a recovering Lender must subsequently return a recovery, or an
amount measured by reference to a recovery, to the Company; and
(ii) the recovering Lender has paid a redistribution in relation to
that recovery,
each Finance Party must reimburse the recovering Lender all or the
appropriate portion of the redistribution paid to that Finance Party,
together with interest for the period while it held the redistribution.
In this event, the subrogation in paragraph (b) above will operate in
reverse to the extent of the reimbursement and the obligations of the
Company under this sub-clause will be adjusted accordingly.
43.3 EXCEPTIONS
Notwithstanding any other term of this Clause, a recovering Lender need
not pay a redistribution to the extent that:
(a) it would not, after the payment, have a valid and enforceable
claim against the Company in the amount of the redistribution; or
56
(b) it would be sharing with another Finance Party any amount which
the recovering Lender has received or recovered as a result of
legal or arbitration proceedings, where:
(i) the recovering Lender notified the other Finance Party
and/or Facility Agent of those proceedings; and
(ii) the other Finance Party had an opportunity to participate
in those proceedings but did not do so or did not take
separate legal or arbitration proceedings as soon as
reasonably practicable after receiving notice of them.
44. SEVERABILITY
If a term of a Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that will not affect:
(a) the legality, validity or enforceability in that jurisdiction of
any other term of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other term of the Finance Documents.
45. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts. This
has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
46. NOTICES 46.1 IN WRITING
(a) Any communication under or in connection with a Finance Document must be
in writing and, unless otherwise stated, may be given:
(i) in person, by post, fax, e-mail or any other electronic
communication approved by the Facility Agent and the Company; or
(ii) if between the Facility Agent and a Lender and the Facility Agent
and the Lender agree, by e-mail or other electronic communication.
(b) For the purpose of the Finance Documents, an electronic communication
will be treated as being in writing.
(c) Unless it is agreed to the contrary, any consent or agreement required
under a Finance Document must be given in writing.
46.2 CONTACT DETAILS
(a) Except as provided below, the contact details of each Party for all
communications in connection with the Finance Documents are those
notified by that Party for this purpose to the Facility Agent on or
before the date it becomes a Party.
57
(b) The contact details of the Company for this purpose are:
Olimpia S.p.A.
Address: Xxxxx Xxxxx, 000
X-00000 Xxxxxx
Fax number: x00 00 0000 0000
E-mail: Xxxxxxx.Xxxxxxx@xxxxxxx.xxx
Attention: Xx. Xxxxxx Xxxxxx
(c) The contact details of the Facility Agent for this purpose are:
Banca di Roma S.p.A. - Sede di Milano
Address: Xxxxxx Xxxxxx, 0
X-00000 Xxxxxx
Fax number: x00 00 00000 000
E-mail: Xxxxxxx.Xxxxxxxxx@xxxxxxxxx.xx; Xxxxxxxxx.Xxxxxx@xxxxxxxxx.xx
Attention: Messrs. Xxxxxxx Giambitto / Xxxxxxxxx Xxxxxx
(d) Any Party may change its contact details by giving five Business Days'
notice to the Facility Agent or (in the case of the Facility Agent) to
the other Parties.
(e) Where a Party nominates a particular department or officer to receive a
communication, a communication will not be effective if it fails to
specify that department or officer.
46.3 EFFECTIVENESS
(a) Except as provided below, any communication in connection with a Finance
Document will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
(ii) if posted, when received by the recipient as shown in the return
receipt;
(iii) if by fax, when received in legible form; and
(iv) if by e-mail or any other electronic communication, when received
in legible form.
(b) A communication given under paragraph (a) above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
(c) A communication to the Facility Agent will only be effective on actual
receipt by it.
46.4 THE COMPANY
All formal communication under the Finance Documents to or from the
Company must be sent through the Facility Agent.
47. LANGUAGE
(a) Any notice given in connection with a Finance Document must be in
English.
58
(b) Except where expressly provided otherwise in this Agreement, any other
document provided in connection with a Finance Document must be:
(i) in English; or
(ii) in Italian.
48. GOVERNING LAW
This Agreement is governed by English law.
49. ENFORCEMENT 49.1 JURISDICTION
(a) The English courts have exclusive jurisdiction to settle any dispute in
connection with any Finance Document (including a dispute regarding the
existence, validity or termination of any Finance Document).
(b) The English courts are the most appropriate and convenient courts to
settle any such dispute and the Company waives objection to those courts
on the grounds of inconvenient forum or otherwise in relation to
proceedings in connection with any Finance Document.
(c) This Clause is for the benefit of the Finance Parties only. To the extent
allowed by law, the Finance Parties may take:
(i) proceedings in any other court; and
(ii) concurrent proceedings in any number of jurisdictions.
49.2 SERVICE OF PROCESS
(a) The Company irrevocably appoints Pirelli International Limited as its
agent under the Finance Documents for service of process in any
proceedings before the English courts.
(b) If any person appointed as process agent is unable for any reason to act
as agent for service of process, the Company must immediately appoint
another agent on terms acceptable to the Facility Agent. Failing this,
the Facility Agent may appoint another agent for this purpose.
(c) The Company agrees that failure by a process agent to notify it of any
process will not invalidate the relevant proceedings.
(d) This Clause does not affect any other method of service allowed by law.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
59
ALLEGATO 1
ORIGINAL PARTIES
NAME OF ORIGINAL LENDER COMMITMENTS
Column 1 Column 2 Column 3 Column 4 Column 5
TRANCHE A TRANCHE B TRANCHE C TOTAL
--------- --------- --------- -----
Banca Intesa S.p.A (euro) 437,500,000 (euro) 14,583,333 (euro) 47,916,667 (euro) 500,000,000
Banca di Roma S.p.A. (euro) 371,875,000 (euro) 12,395,833 (euro) 40,729,167 (euro) 425,000,000
Bipop Carire S.p.A. (euro) 8,750,000 (euro) 291,667 (euro) 958,333 (euro) 10,000,000
Banco di Sicilia S.p.A. (euro) 17,500,000 (euro) 583,333 (euro) 1,916,667 (euro) 20,000,000
IRFIS Mediocredito xxxxx
Xxxxxxx S.p.A. (euro) 4,375,000 (euro)145,833 (euro) 479,167 (euro) 5,000,000
MCC S.p.A. (euro) 35,000,000 (euro) 1,166,667 (euro) 3,833,333 (euro) 40,000,000
Unicredit Banca d'Impresa
S.p.A. (euro) 437,500,000 (euro) 14,583,333 (euro) 47,916,667 (euro) 500,000,000
Calyon S.A. Succursale di
Milano (euro) 306,250,000 (euro) 10,208,333 (euro) 33,541,667 (euro) 350,000,000
Xxxxxx Xxxxxxx Bank
International Limited,
Milan Branch (euro) 306,250,000 (euro) 10,208,334 (euro) 33,541,666 (euro) 350,000,000
Xxxxxx Xxxxxxx European
Funding, Inc. - - - -
Societe Generale,
Succursale di Milano (euro) 175,000,000 (euro) 5,833,334 (euro) 19,166,666 (euro) 200,000,000
TOTAL COMMITMENTS (euro) 2,100,000,000 (euro) 70,000,000 (euro) 230,000,000 (euro) 2,400,000,000
60
ALLEGATO 2
CONDITIONS PRECEDENT DOCUMENTS
COMPANY
1. A copy of the constitutional documents of the Company (which may be
provided in original language).
2. A copy of a resolution of the board of directors of the Company (which
may be provided in original language);
(a) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it
execute the Finance Documents to which it is a party;
(b) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant,
any Request) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a party.
3. A specimen of the signature of each person authorised on behalf of the
Company to execute or witness the execution of any Finance Document or to
sign or send any document or notice in connection with any Finance
Document.
4. A certificate of the Head of Pirelli Finance Legal Department certifying
that each copy document specified in this Schedule is correct, complete
and in full force and effect as at a date no earlier than the date of
this Agreement.
5. Certificato di vigenza for the Company including a non-insolvency
statement.
6. Evidence that the agent of the Company under the Finance Documents for
service of process in England has accepted its appointment.
SECURITY DOCUMENT(S)
1. Evidence that the original Security Agreements listed in Allegato 6
(Security Agreements), paragraph (a), will be duly executed promptly upon
the first Utilisation..
2. Evidence that registration of the original Security Agreement listed in
Allegato 6 (Security Agreements), paragraph (a), will occur promptly
following the first Utilisation Date..
3. Evidence that any existing Security Interest on the assets which are the
subject of the Security Agreement referred to in paragraph 1 above has
been or will be released on or before the first Utilisation Date (subject
to the registration requirements referred to paragraph (2) above being
complied with) and that all Financial Indebtedness secured by that
61
Security Interest will, have been irrevocably and unconditionally repaid
and discharged in full on or before the first Utilisation Date.
LEGAL OPINIONS
A legal opinion of Xxxxx & Overy, Studio Legale Associato, as to matters of
English and Italian law addressed to the Finance Parties.
OTHER DOCUMENTS AND EVIDENCE
Evidence that all fees due and payable before the Closing Date from the Company
under the Finance Documents have been or will be paid by the first Utilisation
Date.
62
ALLEGATO 3
FORM OF REQUEST
To: [AGENT] as Facility Agent
From: [ ]
Date: [ ]
OLIMPIA S.P.A. 2,400,000,000 (euro) CREDIT AGREEMENT
DATED 12TH JANUARY, 2005 (the AGREEMENT)
1. We refer to the Agreement. This is a Request. Terms defined in the
Agreement have the same meaning in this Request unless given a
different meaning in this Request.
2. We wish to borrow a Loan on the following terms:
(a) Utilisation Date: [ ]
(b) Tranche: [ ]
(c) Amount/currency: [ ]
(d) Term: [ ].
3. Our payment instructions are: [ ].
4. We confirm that each condition precedent under the Agreement which must
be satisfied on the date of this Request is so satisfied.
5. This Request is irrevocable.
By:
[ ]
63
ALLEGATO 4
FORM OF TRANSFER CERTIFICATE
To: [AGENT] as Facility Agent
From: [THE EXISTING LENDER] (the Existing Lender) and [THE NEW LENDER]
(the New Lender)
Date: [ ]
OLIMPIA S.P.A. 2,400,000,000 (euro) CREDIT AGREEMENT
DATED 12TH JANUARY, 2005 (the AGREEMENT)
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the
Agreement have the same meaning in this Transfer Certificate unless given a
different meaning in this Transfer Certificate.
1. The Existing Lender transfers by novation to the New Lender the
Existing Lender's rights and obligations referred to in the Schedule
below in accordance with the terms of the Agreement.
2. The proposed Transfer Date is [ ].
3. The administrative details of the New Lender for the purposes of the
Agreement are set out in the Schedule.
4. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 40.4
(Limitation of responsibility of Existing Lender).
5. This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts
were on a single copy of this Transfer Certificate.
6. This Transfer Certificate is governed by English law.
64
THE SCHEDULE
RIGHTS AND OBLIGATIONS TO BE TRANSFERRED BY NOVATION
[insert relevant details, including applicable Commitment (or part)]
ADMINISTRATIVE DETAILS OF THE NEW LENDER
[insert details of Facility Office, address for
notices and payment details etc.]
[EXISTING LENDER] [NEW LENDER]
By: By:
The Transfer Date is confirmed by the Facility Agent as [ ].
[AGENT]
By:
Countersigned by way of acceptance (2)
By The Company/The Facility Agent
on behalf of the Company
------------------
(2) Only to the extent required by the Agreement. The company will need to
countersign to acknowledge continuation of security post transfer.
65
ALLEGATO 5
FORM OF COMPLIANCE CERTIFICATE
To: [AGENT] as Facility Agent
From: OLIMPIA S.p.A.
Date: [ ]
OLIMPIA S.P.A. 2,400,000,000 (euro) CREDIT AGREEMENT
DATED 12TH JANUARY, 2005 (the AGREEMENT)
1. We refer to the Agreement. This is a Compliance Certificate. Terms
defined in the Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this
Compliance Certificate.
2. We confirm that as at [the date of the financial statements delivered
together with this compliance certificate]/[ ], Net Financial
Position is [o].
3. The figures set out in paragraph 2 above are calculated as follows:
[o]
OLIMPIA S.p.A.
By:
[insert applicable certification language]
66
ALLEGATO 6
SECURITY AGREEMENTS
(a) A first ranking pledge over TI Shares, TI Convertible Bonds and /or TI
Warrants in favour of the Lenders.
(b) A first ranking pledge over any additional Collateral in favour of the
Lenders.
67
ALLEGATO 7
RELEASE CERTIFICATE
RELEASE CERTIFICATE
From: Olimpia S.p.A
To: Facility Agent
[Date]
Dear Sirs,
Request for Collateral release
1. We refer to the revolving credit facility agreement (the Facility
Agreement) dated [o] (as amended) whereby a 2.4 billion (euro)
revolving loan facility was made available to Olimpia S.p.A. as
borrower by a group of lenders on whose behalf you act as agent in
connection therewith. Terms defined in the Facility Agreement shall
have the same meaning in this notice.
2. We hereby certify to you that
(a) VTL (calculated in accordance with the provisions of Clause
21.8 as at the Calculation Date immediately preceding the date
hereof) is equal to or greater than 140 per cent.;
(b) no Event of Default has occurred and is continuing and all
other applicable provisions of Clause 21.8 (Optional reduction
of Collateral) have been complied with; and
(c) all Repeating Representations are true in all material
respects on and as of the date hereof, reference to the facts
and circumstances subsisting as at the date hereof.
3. We hereby request that an amount equal to [[ ]
shares/warrants/convertible bonds] in Telecom Italia S.p.A. be released
from the pledge agreement entered into by us on [ ], such that the VTL
[(calculated in accordance with the provisions of Clause 21.8 following
such release shall be 130 per cent.
4. We hereby acknowledge and agree that this Release Certificate shall
constitute a Finance Document for the purposes of the Facility
Agreement.
Kindly acknowledge receipt of this letter.
Yours faithfully
...............................
for and on behalf of
Olimpia S.p.A.
68
SIGNATORIES
COMPANY
OLIMPIA S.p.A.
By:
MANDATED LEAD ARRANGERs
Banca Intesa S.p.A.
By:
MCC S.p.A.
By:
UniCredit Banca Mobiliare S.p.A.
By:
Calyon S.A. Succursale di Milano
By:
Xxxxxx Xxxxxxx Bank International Limited, Milan Branch
By:
Societe Generale, Succursale di Milano
By:
ORIGINAL LENDERS
Banca Intesa S.p.A.
By:
69
Banca di Roma S.p.A.
By:
Bipop Carire S.p.A.
By:
Banco di Sicilia S.p.A.
By:
IRFIS Mediocredito xxxxx Xxxxxxx S.p.A.
By:
MCC S.p.A.
By:
Unicredit Banca d'Impresa S.p.A.
By:
Calyon S.A. Succursale di Milano
By:
Xxxxxx Xxxxxxx Bank International Limited, Milan Branch
By:
70
Xxxxxx Xxxxxxx European Funding, Inc
By:
Societe Generale, Succursale di Milano
By:
FACILITY AGENT
Banca di Roma S.p.A.
By:
71
