EUR1,800,000,000
FACILITY AGREEMENT
dated 30 OCTOBER 2001
for
OLIMPIA S.p.A.
as Borrower
INTESABCI S.p.A. and
UNICREDIT BANCA MOBILIARE S.p.A.
as Mandated Lead Arrangers
INTESABCI S.p.A and
UNICREDIT BANCA MOBILIARE S.p.A.
as Bookrunners
and
BANCA DI ROMA S.p.A.
acting as Facility Agent, Security Agent and
Collateral Monitoring Agent
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REVOLVING FACILITY AGREEMENT
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION.......................................1
2. THE FACILITY........................................................16
3. PURPOSE.............................................................16
4. CONDITIONS OF UTILISATION...........................................17
5. UTILISATION.........................................................19
6. REPAYMENT...........................................................20
7. PREPAYMENT AND CANCELLATION.........................................20
8. INTEREST............................................................24
9. INTEREST PERIODS....................................................25
10. CHANGES TO THE CALCULATION OF INTEREST..............................25
11. FEES................................................................27
12. TAX GROSS UP AND INDEMNITIES........................................27
13. INCREASED COSTS.....................................................30
14. OTHER INDEMNITIES...................................................31
15. MITIGATION BY THE LENDERS...........................................33
16. COSTS AND EXPENSES..................................................33
17. REPRESENTATIONS.....................................................34
18. INFORMATION UNDERTAKINGS............................................37
19. GENERAL UNDERTAKINGS................................................39
20. EVENTS OF DEFAULT...................................................43
21. CHANGES TO THE LENDERS..............................................47
22. NO ASSIGNMENT BY THE BORROWER.......................................50
23. ROLE OF THE AGENTS AND THE MANDATED LEAD ARRANGERS..................51
24. CONDUCT OF BUSINESS BY THE FINANCE PARTIES..........................55
25. SHARING AMONG THE LENDERS...........................................56
26. PAYMENT MECHANICS...................................................57
27. SET-OFF.............................................................59
28. NOTICES.............................................................59
29. CALCULATIONS AND CERTIFICATES.......................................61
30. PARTIAL INVALIDITY..................................................61
31. REMEDIES AND WAIVERS................................................61
32. AMENDMENTS AND WAIVERS..............................................61
33. COUNTERPARTS........................................................62
34. GOVERNING LAW.......................................................63
35. ENFORCEMENT.........................................................63
SCHEDULE 1 THE ORIGINAL LENDERS..................................64
SCHEDULE 2 CONDITIONS PRECEDENT..................................65
SCHEDULE 3 REQUESTS..............................................67
SCHEDULE 4 FORM OF TRANSFER CERTIFICATES.........................68
SCHEDULE 5 COLLATERAL RELEASE CERTIFICATE........................73
THIS AGREEMENT is dated 30 October 2001 and is made in London between:
(1) OLIMPIA S.p.A. (the "Borrower");
(2) INTESABCI S.p.A. and UNICREDIT BANCA MOBILIARE S.p.A. (whether acting
individually or together the " Mandated Lead Arrangers");
(3) INTESABCI S.p.A. and UNICREDIT BANCA MOBILIARE S.p.A. as bookrunners of
the Facility;
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders)
as lenders (the "Original Lenders");
(5) BANCA DI ROMA S.p.A. as facility agent of the Lenders (in such capacity,
the "Facility Agent");
(6) BANCA DI ROMA S.p.A. as security agent (in such capacity, the "Security
Agent"); and
(7) BANCA DI ROMA S.p.A. as collateral monitoring agent (in such capacity,
the "Collateral Monitoring Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
<> means each of the following share purchase
agreements:
(a) the agreements dated 30 July 2001 entered into (i) between
Pirelli and Edizione Holding (for the future benefit of the
Borrower) and Xxxx, pursuant to which the Borrower has
subsequently purchased, in two tranches 1,552,662,120 shares and
68,409,125 warrants in Olivetti; (ii) between Kallithea s.r.l.
(for the future benefit of the Borrower) and Xxxx, pursuant to
which the Borrower has subsequently purchased 50,000,000 shares
in Olivetti; and (iii) between Kallithea s.r.l. (for future
benefit of the Borrower) and G.P.P. International S.A. (being an
Affiliate of Xxxx), pursuant to which the Borrower has
subsequently purchased 97,337,880 shares in Olivetti;
(b) the agreement dated 9 August 2001 entered into between the
Borrower and Pirelli Finance Luxembourg S.A. (being an Affiliate
of Pirelli) pursuant to which the Borrower has purchased
130,980,000 shares in Olivetti; and
(c) the agreement dated 9 August 2001 entered into between the
Borrower and Edizione Holding pursuant to which the Borrower has
purchased 134,322,250 shares in Olivetti.
<> means any shares or warrants in
Olivetti or Convertible Bonds that are purchased with the proceeds of a
Loan after the date hereof in accordance with Clause 4.3 (Further
Conditions Precedent Applicable to Purchases).
"Agent" means, as the context so requires, the Facility Agent, the
Security Agent or the Collateral Monitoring Agent.
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
<> means the EUR180,759,915 loan agreement
entered into by the Borrower on 3 October 2001 with Banca Antoniana
Popolare Veneta S.c.a.r.l. for the purpose of financing the acquisition
of a portion of 1,552,662,120 shares and 68,409,125 warrants in
Olivetti.
"Applicable Collateral Ratio" means:
(a) at any time, after the Collateral Reduction Date, 1.75:1.00; and
(b) at any other time, 1.20:1.00.
"Applicable Default Ratio" means at any time, after the Collateral
Reduction Date, 1.5:1.0.
"Applicable Top-up Ratio" means:
(a) at any time, after the Collateral Reduction Date, 2.00:1.0; and
(b) at any other time, 1.5:1.0.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"Availability Period" means the period from and including the date of
this Agreement to and including the date falling one Month before the
Termination Date.
"Available Commitment" means a Lender's Commitment minus:
(a) the amount of its participation in any outstanding Loans; and
(b) in relation to any proposed Utilisation, the amount of its
participation in any Loans that are due to be made on or before
the proposed Utilisation Date,
(c) other than that Lender's participation in any Loans that are due
to be repaid or prepaid on or before the proposed Utilisation
Date.
"Available Facility" means the aggregate for the time being of each
Lender's Available Commitment.
"Xxxx" means Xxxx, X.X. a "societe anonyme" incorporated under
Luxembourg law, with its registered office in Luxembourg.
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"Break Costs" means the amount (if any) by which:
(a) the additional interest (excluding the Margin) which a Lender
should have received for the period from the date of receipt of
all or any part of its participation in a Loan or Unpaid Sum to
the last day of the current Interest Period in respect of that
Loan or Unpaid Sum, had the principal amount or Unpaid Sum
received been paid on the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing
an amount equal to the principal amount or Unpaid Sum received
by it on deposit with a leading bank in the Relevant Interbank
Market for a period starting on the Business Day following
receipt or recovery and ending on the last day of the current
Interest Period.
"Bridge Facility" means the EUR1,000,000,000 bridge facility dated 3
October 2001 granted to the Borrower by IntesaBci S.p.A. and Unicredito
Italiano S.p.A. to fund in part the acquisition by the Borrower of
approximately 13.72% of ordinary shares and voting rights of Olivetti.
"Business Day" means a day on which banks are open for general business
in Milan and any TARGET Day.
"Calculation Date" means the last Milan Business Day of each week
commencing on or after the Margin Date.
"Cash Equivalent Collateral" means cash and/or Marketable Securities.
"Collateral Ratio" means the ratio of Collateral Value to Total
Outstandings.
"Collateral Reduction Date" means the date on which part of the Olivetti
Collateral is released in accordance with the provisions of Clause 7.3
(Voluntary Cancellation) following an Optional Cancellation.
<> means a certificate executed and
delivered by the Borrower substantially in the form of Schedule 5
(Collateral Release Certificate).
<> means the date on which the Agent has
received a duly completed Collateral Release Certificate or, if later,
the first date following such receipt on which no Default is continuing.
"Collateral Value" means the aggregate of the Olivetti Share Value and
the Olivetti Warrant Value from time to time.
"Commitment" means:
(a) in relation to an Original Lender, the amount set opposite its
name under the heading "Commitment" in Schedule 1 (The Original
Lenders) and the amount of any other Commitment transferred to
it under this Agreement; and
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(b) in relation to any other Lender, the amount of any Commitment
transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Confidentiality Undertaking" means a confidentiality undertaking in a
form agreed between the Borrower and the Facility Agent.
"Convertible Bonds" means debt securities issued by Olivetti and listed
on the Milan stock exchange that are freely convertible into ordinary
shares in the capital of Olivetti provided that such debt securities
entitle the holder thereof to convert each such security into one
ordinary share in the capital of Olivetti, without the payment of any
exercise price or premium.
"Default" means an Event of Default or any event or circumstance
specified in Clause 20 (Events of Default) which would (with the expiry
of a grace or remedy period, or the giving of notice under the Finance
Documents or (except in the case of Clause 20.15 (Material Adverse
Change)) the making of a determination thereunder or any combination of
any of the foregoing, to the extent specified in that Clause) be an
Event of Default.
"Edizione Holding" means Edizione Holding S.p.A., a company incorporated
in Italy.
"EURIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the period of that Loan) the
arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Facility Agent at its request quoted
by the Reference Banks to leading banks in the European
Interbank market;
as at 11.00 am (Brussels time) on the Quotation Day for the offering of
deposits in euro for a period comparable to the Interest Period of the
relevant Loan.
"Event of Default" means any event or circumstance specified as such in
Clause 20 (Events of Default) .
"Facility" means the revolving loan facility made available under this
Agreement as described in Clause 2 (The Facility).
"Facility Office" means the office or offices notified by a Lender to
the Facility Agent in writing on or before the date it becomes a Lender
(or, following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"Fee Letter" means any letter or letters dated on or about the date of
this Agreement between the Mandated Lead Arrangers and the Borrower (or
any Agent and the Borrower) setting out any of the fees referred to in
Clause 11 (Fees).
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"Finance Document" means this Agreement, the Hedging Arrangements, the
Security Documents, any Fee Letter, the Syndication Letter and any other
document designated as such by the Facility Agent or the Mandated Lead
Arrangers and the Borrower.
"Finance Party" means the Facility Agent, the Security Agent, the
Collateral Monitoring Agent, the Mandated Lead Arrangers, a Lender or
any Hedge Provider.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) 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; (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 audited consolidated balance sheet of the
Borrower;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution;
(i) any amount raised by the issue of redeemable shares if such
shares are redeemable prior to the Final Maturity Date;
(j) any amount of any liability under an advance or deferred
purchase agreement if one of the primary reasons behind the
entry into this agreement is to raise finance; and
(k) (without double counting) the amount of any liability in respect
of any guarantee or indemnity for any of the items referred to
in paragraphs (a) to (j) above.
"GAAP" means generally accepted accounting principles in Italy.
<>means:
(a) any Lender (other than an Italian Lender) which has become a
party hereto in accordance with Clause 21 (Changes to the
Lenders) on or prior to the Syndication Date in accordance with
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the terms of the Syndication Letter, and which has not ceased to
be a party hereto in accordance with the terms hereof (each an
<>);
(b) any financial institution or bank to which such Original
Gross-Up Lender makes an assignment or transfer under Clause 21
(Changes to the Lenders) without giving rise to any greater
obligation or liability for the Borrower under Clause 12 (Tax
Gross Up and Indemnities) or Clause 13 (Increased Costs) as a
result of such assignment or transfer and which has not ceased
to be a party hereto in accordance with the terms hereof (each a
<>); and
(c) any financial institution or bank to which such Transferee
Gross-Up Lender makes an assignment or transfer under Clause 21
(Changes to Lenders) without giving rise to any greater
obligation or liability for the Borrower under Clause 12 (Tax
Gross-up and Indemnities) or Clause 13 (Increased Costs) as a
result of such assignment or transfer and which has not ceased
to be a party hereto in accordance with the terms hereof.
<> has the meaning given to such term in Clause
19.11 (Hedging).
"Hedging Policy Letter" means the letter dated on or about the date
hereof setting out the policy for hedging summarised in Clause 19.11
(Hedging) and including the terms of the Zero Coupon Instrument.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Information Memorandum" means the document, if any, in the form to be
approved by the Borrower concerning the Borrower which, at its request
and on its behalf, is to be prepared in relation to this transaction and
distributed by the Mandated Lead Arrangers to selected financial
institutions prior to the Syndication Date.
<> means the EUR 77,468,534 loan agreement
entered into by the Borrower on 3 October 2001 with Interbanca S.p.A.
for the purpose of financing the acquisition of a portion of
1,552,662,120 shares and 68,409,125 warrants in Olivetti.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 9 (Interest Periods) and in relation to an
Unpaid Sum, each period determined in accordance with Clause 8.3
(Default interest).
<> means any Lender that:
(a) is tax-resident in Italy for Italian tax purposes and is lending
out of a Facility Office located in Italy that is effectively
connected with such Lender for Italian tax purposes; and
(b) is not tax resident in Italy for Italian tax purposes but has a
permanent establishment in Italy for Italian tax purposes,
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(d) provided each such Lender books any payments (also for Italian
tax purposes) to be made to it in connection with the Loans in
the accounting records of such Facility Office or permanent
establishment.
<> means the Xxxxxxx Xxxx Bond, the Olimpia MPS
Bond, the MPS Loan Agreement, the Antonveneta Loan Agreement and the
Interbanca Loan Agreement.
"Lender" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 21 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Loan" means a loan made or to be made under the Facility or the
principal amount outstanding for the time being of that loan.
"Majority Lenders" means:
(a) until the Total Commitments have been reduced to zero, a Lender
or Lenders whose Commitments aggregate more than 662/3% of the
Total Commitments (or, if the Total Commitments have been
reduced to zero and there are no Loans then outstanding,
aggregated more than 662/3% of the Total Commitments immediately
prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in
the Loans then outstanding aggregate more than 662/3% of all the
Loans then outstanding.
"Marketable Securities" means debt securities denominated in euro issued
or guaranteed by, or 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.
"Margin" means that percentage set out in the table below for the
corresponding period:
Period Margin
Date hereof up to and including the date falling one Business Day 2.25%
per annum prior to the Margin Date: The Margin Date and thereafter as
follows:
(a) if the Collateral Value is less than or equal to 130% of the
1.70% per annum Total Outstandings:
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(b) if the Collateral Value is greater than 130% but less than or
1.30% per annum equal to 150% of Total Outstandings:
(c) if the Collateral Value is greater than 150% of Total 1.20% per
annum Outstandings:
"Margin Date" means the date falling 18 Months from the date hereof.
"Material Adverse Effect" means a material adverse effect on:
(a) the business, operations, assets, condition (financial or
otherwise) (taken as a whole) of the Borrower or Olivetti;
(b) the ability of the Borrower to perform its material obligations
under the Finance Documents; or
(c) the validity or enforceability of the Finance Documents or the
rights or remedies of any Finance Party under the Finance
Documents.
"Milan Business Day" means a day (other than a Saturday or Sunday) on
which banks are open for general business in Milan.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically
corresponding day is not a Business Day, that period shall end
on the next Business Day in that calendar month in which that
period is to end if there is one, or if there is not, on the
immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period
is to end.
The above rules will only apply to the last Month of any period.
<> means the EUR516,456,000 loan agreement entered
into by the Borrower on 3 October 2001 with Monte dei Paschi di Siena
S.p.A. for the purpose of financing the acquisition of a portion of
1,552,662,120 shares and 68,409,125 warrants in Olivetti.
<> means the EUR1,032,920,000 bond issued by the
Borrower to Xxxx on 5 October 2001.
<> means the EUR250,000,000 bond issued or to be
issued by the Borrower to Monte dei Paschi di Siena S.p.A.
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"Olimpia Shareholders" means Pirelli, Edizione Holding, Unicredito
Italiano S.p.A. and IntesaBci S.p.A..
"Olivetti" means Olivetti S.p.A., a company incorporated in Italy.
"Olivetti Collateral" means the Olivetti Shares and the Olivetti
Warrants and Additional Olivetti Collateral.
"Olivetti Net Asset Value" means, on any date of determination, the
value of the shares held by Olivetti in TI (determined by reference to
the arithmetic mean of the quoted official price on the Milan stock
exchange for shares in TI for the twenty Business Days preceding the
relevant date of determination) plus any cash and/or Marketable
Securities then owned by Olivetti minus the aggregate amount of all
indebtedness of Olivetti outstanding at the relevant date of
determination.
"Olivetti Shares" means 1,701,802,250 ordinary issued shares and voting
rights of Olivetti owned by the Borrower at the date hereof.
"Olivetti Share Value" means, on any Calculation Date:
y
-- X nb
qb
where:
y is the sum of B calculated on each of the five Milan Business
Days immediately preceding that Calculation Date;
B is the Price of an ordinary share in the share capital of
Olivetti on the relevant day;
nb is the number of ordinary shares in the share capital of
Olivetti and Convertible Bonds that are secured under the
Security Documents, as at that Calculation Date;
qb is the number of days on which, during the five Business Days
immediately preceding that Calculation Date, an official price
was quoted on the Milan stock exchange for an ordinary share in
the capital of Olivetti provided that qb shall not be less than
1.
"Olivetti Warrants" means 68,409,125 warrants for the purchase of
ordinary shares in the capital of Olivetti owned by the Borrower at the
date hereof.
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"Olivetti Warrant Value" means, on any Calculation Date:
y
-- X nb
qb
where:
y is the sum of B calculated on each of the five Milan Business
Days immediately preceding that Calculation Date;
B is the official quoted price on the Milan stock exchange of a
warrant for Olivetti shares on the relevant day;
nb is the number of warrants for Olivetti shares that are secured
under the Security Documents, as at that Calculation Date;
qb is the number of days on which, during the five Business Days
immediately preceding that Calculation Date, an official price
was quoted on the Milan stock exchange for a warrant for
Olivetti shares provided that qb shall not be less than 1.
<> means the Borrower's cancellation of the
Available Facility in accordance with Clause 7.3 (Voluntary
Cancellation) by an amount such that the Available Facility following
such cancellation is less than EUR 750,000,000.
"Original Financial Statements" means the audited financial statements
of the Borrower for the financial year ending 31 December 2001.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
European Monetary Union.
"Party" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"Permitted Financial Indebtedness" means any Financial Indebtedness:
(a) arising under the Finance Documents;
(b) which is Permitted Junior Indebtedness;
(c) arising under a Subordinated Shareholder Loan;
(d) arising under any bridge facility to be granted to the Borrower
(prior to the issue of the Olimpia MPS Bond) provided that the
following conditions are satisfied: (a) the principal amount of
such facility does not exceed EUR250,000,000 in aggregate; (b)
all amounts outstanding thereunder fall due on or before a date
falling not later than 60 days from the date hereof; (c) such
amounts will be paid or repaid in full on or before such final
maturity date with the proceeds of the Olimpia MPS Bond and/or
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of a Subordinated Shareholder Loan; and (d) no security is
granted or permitted to subsist by the Borrower at any time with
respect thereto; or
(e) which becomes permitted by a decision of the Majority Lenders
"Pirelli" means Pirelli S.p.A., a company incorporated in Italy.
"Permitted Junior Indebtedness" means any indebtedness of the Borrower
arising under any Junior Loan Agreement provided that under the terms of
the Junior Loan Agreements:
(a) no scheduled repayment of principal is required to be made until
after the Termination Date;
(b) the aggregate principal amount of such indebtedness does not
exceed EUR2,100,000,000 at any time;
(c) the aggregate of interest that is payable in respect of amounts
of such indebtedness advanced pursuant to the terms of the
Antonveneta Loan Agreement, the Interbanca Loan Agreement and
the MPS Loan Agreement only prior to the Termination Date does
not exceed an aggregate amount of interest calculated on a
notional principal amount of EUR1 billion at a rate equal to the
sum of the Screen Rate for a six month interest period
(calculated six monthly in accordance with the relevant Junior
Loan Agreement) plus 0.5%; and
(d) no Security is granted or permitted to subsist by the Borrower
at any time over all or any of its assets as security for any of
its obligations with respect thereto.
"Permitted Transferee" means:
(a) in the case of Pirelli or any Permitted Transferee of Pirelli,
any company whose issued share capital and voting rights is
wholly owned and controlled by Pirelli; and
(b) in the case of Edizione Holding or any Permitted Transferee of
Edizione Holding, any company whose issued share capital and
voting rights is wholly owned and controlled by Edizione
Holding.
"Price" means in relation to an ordinary share in the capital of
Olivetti, the official quoted price for such share on the Milan stock
exchange provided that if ordinary shares of Olivetti are suspended for
any reason for more than five Business Days, then the Price will be
determined by reference to either:
(a) the Olivetti Net Asset Value (if shares in TI are not also
suspended at such time); or
(b) the Collateral Value (as most recently determined hereunder),
provided that for every five Business Days for which ordinary
shares in Olivetti remain suspended, the Collateral Value shall
be reduced by ten per cent. (if ordinary shares in both Olivetti
and TI are suspended at the same time).
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(c) "Quotation Day" means, in relation to any period for which an
interest rate is to be determined two TARGET Days before the
first day of that period unless market practice differs in the
Relevant Interbank Market, in which case the Quotation Day will
be determined by the Facility Agent in accordance with market
practice in the Relevant Interbank Market (and if quotations
would normally be given by leading banks in the Relevant
Interbank Market on more than one day, the Quotation Day will be
the last of those days).
"Reference Banks" means the principal office in Milan of Banca di Roma
S.p.A., IntesaBci S.p.A. and Unicredito Italiano S.p.A. or such other
banks as may be appointed by the Facility Agent with the prior written
consent of the Borrower (such consent not to be unreasonably withheld or
delayed).
"Relevant Interbank Market" means, in relation to euro, the European
interbank market.
"Repeating Representations" means each of the representations set out in
Clauses 17.1 (Status) to 17.9 (Governing law and enforcement), paragraph
(a) of Clause 17.13 (No default), paragraph (a) of Clause 17.14 (No
misleading information) and Clauses 17.15 (Permitted Security) to Clause
17.18 (No proceedings pending or threatened). The representation and
warranties in Clause 17.14(b) (No Misleading Information) shall only be
made on the date the Information Memorandum is approved by the Borrower
and on the Syndication Date.
"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 to 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 period,
displayed on the Telerate screen page 248. If such page is replaced or
service ceases to be available, the Facility Agent may specify another
page or service displaying the appropriate rate after consultation with
the Borrower and the Lenders.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"Security Documents" means:
(a) the agreement dated on or about the date hereof creating a first
ranking pledge over all of the Olivetti Collateral in the agreed
form between the Borrower and the Security Agent as security for
the Borrower's obligations hereunder; and
(b) the agreements to be entered into between the Borrower and the
Security Agent pursuant to Clause 19.13 (Security); and
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(c) any other document entered into by the Borrower creating or
evidencing a Security to secure all or part of the Borrower's
obligations under the Finance Documents.
"Subordinated Shareholder Loan" means any loan made by any Olimpia
Shareholder to the Borrower pursuant to a written document and in terms
which provide that:
(a) such indebtedness matures after the Termination Date;
(b) no payment of principal or interest is required to be made until
after the Termination Date unless such payment is made with the
proceeds of any equity issuance by the Borrower;
(c) that such Olimpia Shareholder agrees not, under any
circumstances, to take any action or make any claim in respect
of the Security constituted by the Security Documents;
(d) that such Olimpia Shareholder agrees that it shall not, under
any circumstances, object to any of the Finance Parties taking
any enforcement action of any kind under the Security Documents;
(e) if the Security constituted by the Security Documents or any
repayment made by the Borrower hereunder is successfully revoked
by a trustee in bankruptcy (liquidatore) of the Borrower and
that Olimpia Shareholder receives any amount (a "Recovered
Amount") from the trustee in bankruptcy in satisfaction of any
obligations owed to such Olimpia Shareholder by the Borrower
(which it would not have otherwise received but for such
successful revocation) that Olimpia Shareholder shall return any
Recovered Amounts received by it to the Borrower on demand of
the Borrower; and
(f) that Olimpia Shareholder agrees that it shall not take any
proceedings against or file any petition for the winding-up of,
the Borrower.
"Subsidiary" means in relation to any company or corporation, a company
or corporation:
(a) which is controlled, directly or indirectly, by the first
mentioned company or corporation;
(b) more than half the issued ordinary voting share capital of which
is beneficially owned, directly or indirectly by the first
mentioned company or corporation; or
(c) which is a Subsidiary of another Subsidiary of the first
mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
direct its affairs and/or to control the composition of its board of
directors or equivalent body.
"Syndication Date" means the day specified by the Mandated Lead
Arrangers as the day on which syndication of the Facility is
successfully completed in accordance with the terms of the Syndication
Letter.
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"Syndication Letter" means the letter dated on or about the date hereof
addressed by the Mandated Lead Arrangers to the Borrower dealing inter
alia with the proposed syndication strategy for the Facility.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET Day" means any day on which TARGET 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 by the Borrower to pay or any delay by the
Borrower in paying any of the same).
"Termination Date" means the date falling 60 Months after the date of
this Agreement.
"TI" means Telecom Italia S.p.A., a company incorporated in Italy.
"Total Commitments" means the aggregate of the Commitments, being EUR
1,800,000,000 at the date of this Agreement.
"Total Outstandings" means on any Calculation Date, the sum of:
(a) the aggregate of all outstanding Loans (including (other than in
respect of a Rollover Loan) the amount of any proposed
Utilisation, accrued interest thereon and all other amounts
accrued under the Finance Documents); and
(b) the aggregate marked to market value of any Hedging Arrangements
(to the extent such value (if payable at such date) would result
in amounts being due thereunder by the Borrower),
minus the amount of any Cash Equivalent Collateral secured in favour of
the Lenders on or prior to such Calculation Date.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 4 (Form of Transfer Certificates) or any other
form agreed between the Facility Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate; and
(b) the date on which the Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
"Utilisation" means a utilisation of the Facility.
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"Utilisation Date" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out
in Schedule 3 (Requests).
<> means any zero coupon swap instrument entered
into by the Borrower for the purpose of financing the payment of
interest due under the Facility, substantially in accordance with the
Hedging Policy Letter provided that no security is granted, at any time,
by the Borrower with respect to any indebtedness arising under such
instrument.
1.2 Construction
(a) Unless a contrary indication appears a reference in this
Agreement to:
(i) "assets" includes present and future properties,
revenues and rights of every description;
(ii) the "European interbank market" means the interbank
market for euro operating in Participating Member
States;
(ii) a "Finance Document" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended or novated;
(iii) "indebtedness" includes any obligation (whether incurred
as principal or as surety) for the payment or repayment
of money, whether present or future, actual or
contingent;
(iv) a "person" includes any person, firm, company,
corporation, government, state or agency of a state or
any association, trust or partnership (whether or not
having separate legal personality) of two or more of the
foregoing;
(v) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having
the force of law but, if not having the force of law,
which is generally complied with by those to whom it is
addressed) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(vi) a<>(to the extent referable to a share in the
ordinary capital of Olivetti) shall be construed as a
reference to a share listed on the Milan stock exchange;
(vii) <> shall be construed as a reference to value added
tax including any similar tax which may be imposed in
place thereof from time to time;
(viii) a <> (to the extent referable to a warrant in
respect of a share in the ordinary capital of Olivetti)
shall be construed as a reference to a warrant listed on
the Milan stock exchange;
(ix) a provision of law is a reference to that provision as
amended or re-enacted; and
(x) a time of day is a reference to Milan time.
-15-
(b) Section, Clause and Schedule headings are for ease of reference
only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default (other than an Event of Default) is "continuing" if it
has not been remedied or waived and an Event of Default is
"continuing" if it has not been waived.
1.3 Currency Symbols and Definitions
"EUR" and "euro" means the single currency unit of the Participating
Member States.
1.4 Third party rights
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or enjoy the
benefit of any term of this Agreement.
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SECTION 2
THE FACILITY
2. THE FACILITY
2.1 The Facility
Subject to the terms of this Agreement, the Lenders make available to
the Borrower a euro revolving loan facility in an aggregate amount equal
to the Total Commitments.
2.2 Lenders' rights and obligations
(a) The obligations of each Lender under the Finance Documents are
several. Failure by a Lender to perform its obligations under
the Finance Documents does not affect the obligations of any
other Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under
the Finance Documents.
(b) The rights of each Lender under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Lender from the
Borrower shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under the Facility:
(a) to pay in full all amounts outstanding under the Bridge
Facility;
(b) to fund in part the acquisition of up to 54,000,000 ordinary
shares of Olivetti formerly owned by Banca di Roma S.p.A.;
(c) to fund the acquisition of additional shares in Olivetti;
(d) to pay the exercise price of the Olivetti Warrants;
(e) to fund the subscription by the Borrower for any share capital
issuance by Olivetti or any issue of Convertible Bonds;
(f) to fund the payment of fees, commissions and expenses and other
sums (other than principal or interest) payable under the
Finance Documents;
(g) to refinance all or part of a maturing Loan;
(h) to pay the fees of the Borrower's advisors; and
(i) to fund the acquisition of additional warrants in Olivetti and
Convertible Bonds.
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3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
The Borrower may not deliver a Utilisation Request unless the Facility
Agent has received all of the documents and other evidence listed in
Schedule 2 (Conditions precedent) in form and substance satisfactory to
the Facility Agent (acting on the instructions of Lenders).
4.2 Further conditions precedent for all Loans
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a) in the case of a Rollover Loan, no Event of Default is
continuing or would result from the proposed Loan, and, in the
case of any other Loan, no Default is continuing or would result
from the proposed Loan; and
(b) the Repeating Representations to be made by the Borrower are
true in all material respects; and
(c) (following the Margin Date) other than in the case of a Rollover
Loan, the Collateral Ratio is not less than the Applicable
Top-Up Ratio.
4.3 Further Conditions Precedent Applicable to Purchases
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) with respect to a Utilisation Request delivered in
relation to any of the purposes (other than those specified at Clause
3.1(a), (f) and (g) (Purpose) if:
(a) all amounts outstanding under the Bridge Facility have been
prepaid or repaid in full out of the proceeds of the first
Utilisation hereunder;
(b) in the case of a Loan to be made for the purpose specified at
Clause 3.1(b) (Purpose), the price per share in Olivetti payable
with the proceeds of such Loan shall not exceed euro 4.175;
(c) in the case of a Loan to be made for the purpose specified at
Clause 3.1(c) (Purpose), the following conditions are met:
(i) the price per share in Olivetti payable with the
proceeds of such Loan shall not exceed euro 4.175 and
the amount of such Loan when aggregated with the amount
of all Loans made available for the purchase of shares
in Olivetti pursuant to this paragraph (c)(i) does not
exceed EUR45 million in aggregate; or
(ii) the ratio between the amount of such Loan and the number
of shares to be purchased with the proceeds of such Loan
is or is less than Euro 2.00:1.00; and
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(iii) no applicable requirement to launch a mandatory
take-over bid on Olivetti is triggered as a result of
the purchase of the relevant shares in Olivetti.
(d) in the case of a Loan to be made for the purpose specified at
Clause 3.1(e) (Purpose), the following conditions are met:
(i) the net proceeds of the relevant issuance by Olivetti
will be fully applied by Olivetti as soon as reasonably
practicable following receipt thereof, in repayment or
prepayment of existing financial indebtedness of
Olivetti;
(ii) the ratio between the amount of such Loan and the number
of shares and/or Convertible Bonds to be subscribed with
the proceeds of such Loan is or is less than Euro
2.00:1.00; and
(iii) no applicable requirement to launch a mandatory
take-over bid on Olivetti is triggered as a result of
such subscription;
(e) in the case of a Loan to be made for the purpose specified at
Clause 3.1(h) (Purpose), the amount of such Loan when aggregated
with the amount of all Loans made available for the payment of
the relevant fees pursuant to this paragraph (e) does not exceed
EUR1 million in aggregate;
(f) in the case of a Loan to be made for the purpose specified at
Clause 3.1(i) (Purpose), the amount of such Loan when aggregated
with the amount of all Loans made available for the purchase of
warrants in Olivetti and/or Convertible Bonds pursuant to this
paragraph (f) does not exceed EUR100 million in aggregate; and
(g) the Facility Agent (acting reasonably) is satisfied that the
Borrower will comply with its obligations under Clause 19.13
(Security) with regard to shares, warrants and/or Convertible
Bonds purchased or subscribed with the proceeds of any such
Loan.
4.4 Maximum number of Loans
The Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation 11 or more Loans would be outstanding.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
The Borrower may utilise the Facility by delivery to the Facility Agent
of a duly completed Utilisation Request not later than 9.30 am three
Business Days before the proposed Utilisation Date.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be regarded
as having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within
the Availability Period;
(ii) the currency and amount of the Utilisation comply with
Clause 5.3 (Currency and amount); and
(iii) the proposed Interest Period complies with Clause 9
(Interest Periods).
(b) Only one Loan may be requested in each Utilisation Request
(except that where the Borrower is making such request in order
to refinance a maturing Loan, it may request two Loans be made
on the same day that such maturing Loan is due to be repaid,
subject to the terms hereof, in the same Utilisation Request
provided that the aggregate amount of such Loans exceeds the
amount of the maturing Loan).
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be euro.
(b) The amount of the proposed Loan must be an amount which is not
more than the Available Facility and which is a minimum of
EUR50,000,000 or if less, the Available Facility.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each
Lender shall make its participation in each Loan available
through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be
equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to making the Loan.
(c) The Facility Agent shall notify each Lender of the amount of
each Loan by no later than 15.00 p.m. three Business Days prior
to the proposed Utilisation Date.
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. REPAYMENT
The Borrower shall repay each Loan made to it on the last day of its
Interest Period.
7. PREPAYMENT AND CANCELLATION
7.1 Illegality
If, it becomes unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to
fund its participation in any Loan:
(a) that Lender shall promptly notify the Facility Agent upon
becoming aware of that event;
(b) upon the Facility Agent notifying the Borrower, the Commitment
of that Lender will be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the
Loans made to the Borrower on the last day of the Interest
Period for each Loan occurring after the Facility Agent has
notified the Borrower or, if earlier, the date specified by
the Lender in the notice delivered to the Facility Agent
(being no earlier than the last day of any applicable grace
period permitted by law).
7.2 Mandatory Prepayment
7.2.1 Mandatory Prepayment on a change in Corporate Structure: The
Borrower shall procure that all outstanding Loans (together
with accrued interest thereon, and all other amounts
outstanding under the Finance Documents at such time) are
immediately prepaid in full on the occurrence of any of the
following:
(a) Pirelli and/or Edizione Holding and/or any Permitted
Transferee cease to own and control in aggregate at
least 50% plus one share of the issued share capital
and voting rights of the Borrower; or
(b) a person, or group of persons (other than the
Borrower) acting in concert acquires or has the
ability (either by reason of ownership of a
shareholding in the issued share capital of the
relevant entity and/or, by the exercise of rights
under a shareholders' agreement in relation thereto)
to direct or execute or implement the affairs of
Olivetti or to determine and implement its business
strategy; or
(c) the Borrower ceases to own and control the largest
shareholding in Olivetti; or
(d) Olivetti ceases to own shares in and control TI
directly and/or indirectly, except as a result of a
merger between Olivetti and TI as permitted pursuant
to Clause 19.6 (Merger and other reconstructions); or
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(e) the Borrower ceases to hold at least 26.9% of the
issued ordinary share capital and voting rights
exercisable at a meeting of ordinary shareholders of
Olivetti (except as a result of a dilution of such
share capital that results from the exercise of the
warrants for Olivetti shares existing at the date
hereof).
For the purpose of this Clause 7.2.1:
(a) a company or corporation (the <>)
shall be treated as being <> by another
if the conditions set forth in Article 2359 of the
Italian civil code are satisfied with respect to the
first company; and
(b) <> shall be construed as a reference to
Olivetti or any company resulting or formed on a
merger of Olivetti and any other company, to the
extent permitted pursuant to Clause19.6 (Merger and
other reconstructions).
(c) <> shall be construed as a reference to the
Borrower or any company resulting or formed on a
merger of the Borrower and any other company, to the
extent permitted pursuant to Clause 19.6 (Merger and
other reconstructions).
7.2.2 Mandatory Prepayment for breach of Collateral Ratio
Requirements:
(a) If, on any Calculation Date, the Collateral Ratio is
less than or equal to the Applicable Collateral
Ratio, the Collateral Monitoring Agent shall promptly
notify the Borrower of the actual Collateral Ratio
and the Borrower shall, within 2 Business Days of
receipt of such notification, notify the Collateral
Monitoring Agent whether or not it shall:
(i) secure further Cash Equivalent Collateral in
favour of the Lenders (and, as the case may
be, the Hedge Providers) in a manner
acceptable thereto (acting reasonably); or
(ii) prepay the Facility,
in either case, in an amount sufficient to ensure
that, not later than 5 (or following the Collateral
Reduction Date) 10 Business Days from the date of
receipt of the Borrower's notification by the
Collateral Monitoring Agent, the Collateral Ratio is
at least equal to the Applicable Top-Up Ratio. For
the purposes of determining the Collateral Ratio at
any time after the Collateral Reduction Date, an
amount of the Olivetti Collateral not exceeding 5.5%
of the issued ordinary share capital of Olivetti may
be taken into account.
(b) If the Borrower:
(A) fails to notify the Collateral Monitoring
Agent within 2 Business Days as required by
paragraph (a) of this Clause 7.2.2; or
(B) notifies the Collateral Monitoring Agent
that it elects not to exercise either option
described in paragraph (a)(i) or (a)(ii) of
this Clause 7.2.2; or
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(c) having notified the Collateral Monitoring
Agent of its election to do so, subsequently
fails to comply with the requirements of
paragraph (a)(i) or, as the case may be,
(a)(ii) of this Clause 7.2.2 within the
specified 5 (or following the Collateral
Reduction Date) 10 Business Day period,
the Borrower shall procure that all outstanding
Loans, together with accrued interest, and all other
amounts owing under the Finance Documents are
immediately prepaid in full, whereupon the Facility
will be cancelled.
(c) If, at any time following the Collateral Reduction
Date, the Collateral Ratio falls to the Applicable
Default Ratio, the Borrower shall procure that all
outstanding Loans, together with accrued interest,
and all other amounts owing under the Finance
Documents are immediately prepaid in full, whereupon
the Facility will be cancelled.
7.2.3 Mandatory Prepayment in relation to Permitted Junior
Indebtedness: The Borrower shall procure that all outstanding
Loans (together with accrued interest thereon, and all other
amounts outstanding under the Finance Documents at such time)
are immediately prepaid in full in the event that prior to the
Termination Date (a) it delivers any notice evidencing its
intention to repay or prepay any amount of principal
outstanding under the Junior Loan Agreements or any
Subordinated Shareholder Loan or (b) any amount of principal
outstanding under the Junior Loan Agreements or any
Subordinated Shareholder Loan is prepaid or repaid, in whole
or in part.
7.2.4 Mandatory Prepayment out of Equity Proceeds: The Borrower
shall procure that all outstanding Loans (together with
accrued interest thereon, and all other amounts outstanding
under the Finance Documents at such time) are immediately
prepaid in full in the event that prior to the Termination
Date it receives cash proceeds of any issue of shares or other
equity investments unless the following conditions are
satisfied:
(i) such proceeds are to be applied in full by the
Borrower towards one of the following purposes: (a)
the subscription of new shares of Olivetti pursuant
to a duly authorised capital increase; or (b) the
purchase of shares or warrants in Olivetti by the
Borrower (in each such case (a) or (b) provided that
no applicable requirement to launch a mandatory
take-over bid on Olivetti is triggered as a result of
such subscription or purchase); or (c) the repayment
or prepayment of all or any part of the Loans,
subject always to the provisions of Clause 7.6
(Restrictions); and
(ii) such proceeds are promptly applied by the Borrower
upon receipt in accordance with one of the purposes
specified in paragraph (i) above.
7.3 Voluntary cancellation
(a) The Borrower may, if it gives the Facility Agent not less than
5 Business Days' (or such shorter period as the Majority
Lenders may agree) prior notice, cancel the whole or any part
(that part being a minimum amount of EUR150,000,000) of the
Available Facility. Any cancellation under this Clause 7.3
shall reduce the Commitments of the Lenders rateably.
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(b) If, on any Calculation Date (1) the Optional Cancellation has
occurred and (2) the actual Collateral Ratio at such time is
greater than 2.00:1.00, then the Borrower may by delivering
the Collateral Release Certificate request the Security Agent
to release such part of the Olivetti Collateral as is
sufficient for the actual Collateral Ratio following such
release to be equal to 2.00 to 1.00, whereupon, the Security
Agent shall promptly give effect to such release with effect
from the Collateral Release Date.
7.4 Voluntary prepayment of Loans
The Borrower may, if it gives the Facility Agent not less than 10
Business Days' (or such shorter period as the Majority Lenders may
agree) prior notice, prepay the whole or any part (that part being a
minimum amount of EUR50,000,000) of a Loan.
7.5 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender (other than a Gross-Up
Lender) by the Borrower is required to be increased
under paragraph (c) of Clause 12.2 (Tax gross-up); or
(ii) any Lender claims indemnification from the Borrower
under Clause 12.3 (Tax indemnity) or Clause 13.1
(Increased costs) or paragraph (c) of Clause 14.2
(Other indemnities);
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Facility
Agent notice of cancellation of the Commitment of that Lender
and its intention to procure the repayment of that Lender's
participation in the Loans provided that the Borrower shall be
entitled to procure the repayment, without penalty, of a
Gross-Up Lender's participation in the Loans and a
cancellation of such Lender's Commitment if as a result of any
introduction of, change to or in the interpretation of any law
rule or double taxation treaty or published practice of the
Italian taxing authority occurring after the date hereof, the
Borrower would be under a greater obligation or liability
under Clause 12.2 (Tax gross-up) than it would have been but
for such introduction or change.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to
zero.
(c) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if
earlier, the date specified by the Borrower in that notice),
the Borrower shall repay that Lender's participation in the
Loans.
7.6 Restrictions
(a) Any notice of cancellation or prepayment given by any Party
under this Clause 7 shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify
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the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation
or prepayment.
(b) Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject to
any Break Costs, without premium or penalty.
(c) The Borrower shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except as
expressly provided for in this Agreement.
(d) No amount of the Total Commitments cancelled or of any Loan
prepaid under this Agreement may be subsequently reinstated or
reborrowed.
(e) If the Facility Agent receives a notice under this Clause 7 it
shall promptly forward a copy of that notice to either the
Borrower or the affected Lender, as appropriate.
SECTION 5
COSTS OF UTILISATION
8. INTEREST
8.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin at such time (to be determined, after the Margin Date,
by the Collateral Monitoring Agent two Business Days prior to
the first day of each Interest Period), subject to Clause 8.6
(Adjustment of Margin); and
(b) EURIBOR.
8.2 Payment of interest
On the last day of each Interest Period the Borrower shall pay accrued
interest on the Loan to which that Interest Period relates (and, if the
Interest Period is longer than six Months, on the dates falling at six
Monthly intervals after the first day of the Interest Period).
8.3 Default interest
(a) If the Borrower fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual
payment (both before and after judgment) at a rate one per
cent higher than the rate which would have been payable if the
overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by
the Facility Agent (acting reasonably). Any interest accruing
under this Clause 8.3 shall be immediately payable by the
Borrower on demand by the Facility Agent.
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(b) Default interest (if unpaid) arising on an unpaid sum shall be
due and payable and shall be paid by the Borrower at the end
of each Interest Period applicable to that overdue amount or
such other dates as the Facility Agent may specify in writing
to the Borrower but will remain immediately due and payable.
8.4 Notification of rates of interest
The Facility Agent shall promptly notify the Lenders and the Borrower
of the determination of a rate of interest under this Agreement.
8.5 Notification of Collateral Amount
The Collateral Monitoring Agent shall promptly notify the Lenders and
the Borrower of the determination of the Collateral Value for each
Calculation Date.
8.6 Adjustment of Margin
(a) Any reduction or increase in the Margin following the Margin
Date shall be determined by the Collateral Monitoring Agent on
each Margin Adjustment Date, based on the ratio between (i)
the arithmetic mean (rounded downwards to four decimal places)
of the value y/qb (with respect to the Olivetti Share Value
and the Olivetti Warrant Value) calculated for the preceding
three Calculation Dates and for such Margin Adjustment Date
multiplied by the number of shares or warrants in Olivetti and
Convertible Bonds that are secured at such Margin Adjustment
Date under the Security Documents and (ii) the Total
Outstandings as at such Margin Calculation Date. Any such
reduction or increase shall take effect from such Margin
Adjustment Date.
(b) For the purpose of this Clause 8.6 (Adjustment of Margin),
<> means the fourth Calculation Date
following the Margin Date and each fourth successive
Calculation Date thereafter.
9. INTEREST PERIODS
9.1 Selection of Interest Periods
(a) The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan.
(b) Subject to this Clause 9, the Borrower may select an Interest
Period of one, three or six Months or any other period agreed
between the Borrower and the Facility Agent (acting on the
instructions of all the Lenders).
(c) An Interest Period for a Loan shall not extend beyond the
Termination Date provided that the Borrower may select an
Interest Period of less than 3 months ending on such date.
(d) Each Interest Period for a Loan shall start on the Utilisation
Date.
(e) A Loan has one Interest Period only.
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(f) Prior to the earlier of (a) 2 February 2002 and (b) the
Syndication Date, Interest Periods shall be one month or such
other period as the Facility Agent and the Borrower may agree
and any Interest Period which would otherwise end during the
month preceding or extend beyond the Syndication Date shall
end on the Syndication Date.
9.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
10. CHANGES TO THE CALCULATION OF INTEREST
10.1 Absence of quotations
Subject to Clause 10.2 (Market disruption), if EURIBOR is to be
determined by reference to the Reference Banks but a Reference Bank
does not supply a quotation by 11.00am (Brussels time) on the Quotation
Day, the applicable EURIBOR shall be determined on the basis of the
quotations of the remaining Reference Banks.
10.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each
Lender's share of that Loan for the Interest Period shall be
the rate per annum which is the sum of:
(i) the Margin; and
(ii) the 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
Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of
funding its participation in that Loan from whatever
source it may reasonably select.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the
relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks
supplies a rate to the Facility Agent to determine
EURIBOR for euro and the relevant Interest Period; or
(ii) before close of business on the Quotation Day for the
relevant Interest Period, the Facility Agent receives
notifications from more than one Lender (whose
participations in a Loan exceed 50 per cent. of that
Loan) that the cost to it of obtaining matching
deposits in the Relevant Interbank Market would be in
excess of EURIBOR.
10.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Facility Agent or
the Borrower so requires, the Facility Agent and the Borrower
shall enter into negotiations (for a period of not more than
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thirty days) with a view to agreeing a substitute basis for
determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
10.4 Break Costs
(a) The Borrower shall, within five Business Days of demand by the
Facility Agent on account of a Finance Party, pay to that
Finance Party its Break Costs attributable to all or any part
of a Loan or Unpaid Sum being paid by the Borrower on a day
other than the last day of an Interest Period for that Loan or
Unpaid Sum provided that such demand by the Facility Agent
shall set out in reasonable detail the basis of the claim
being made by such Finance Party.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Facility Agent, provide a certificate setting
out (in reasonable detail) the basis of its claim for Break
Costs for any Interest Period in which they accrue.
11. FEES
11.1 Commitment fee
(a) The Borrower shall pay to the Facility Agent (for the account
of each Lender) a fee in euro computed at the rate of fifty
per cent. of the Margin applicable from time to time on that
Lender's Available Commitment for the Availability Period.
(b) The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the
Availability Period, on the last day of the Availability
Period and on the cancelled amount of the relevant Lender's
Commitment at the time the cancellation is effective.
(c) No commitment fee shall be payable under this Clause 11.1 in
relation to any portion of any Lender's Commitment in relation
to which written confirmation is obtained from the relevant
regulatory authority of that Lender that such portion has zero
weighting for capital adequacy purposes provided that nothing
in this sub-clause 11.1 (c) shall impose an obligation on any
such Lender to obtain any such confirmation.
11.2 Arrangement fee
The Borrower shall pay to the Mandated Lead Arrangers an arrangement
fee in the amount and at the times agreed in a Fee Letter.
11.3 Agency fee
The Borrower shall pay to each Agent (for its own account) an agency
fee in the amount and at the times agreed in a Fee Letter.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
12. TAX GROSS UP AND INDEMNITIES
12.1 Definitions
(d) In this Clause 12:
(a) "Protected Party" means a Finance Party which is or will be,
for or on account of Tax, subject to any liability or required
to make any payment in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
(b) "Qualifying Lender" means a Gross-Up Lender or an Italian
Lender.
(c) "Tax Credit" means a credit against, relief or remission for,
or repayment of any Tax that is in respect of or calculated by
reference to a Tax Payment.
(d) "Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
(e) "Tax Payment" means an increased payment made by the Borrower
to a Finance Party under Clause 12.2 (Tax gross-up) or a
payment under Clause 12.3 (Tax indemnity).
(f) <> means a Lender which is (on the date a
payment falls due) entitled to that payment under a double
taxation agreement in force on that date between the country
of residence of the Lender and the country of residence of the
Borrower (subject to the completion of any necessary
procedural formalities) without a Tax Deduction or with a
smaller Tax Deduction.
12.2 Tax gross-up
(a) The Borrower shall make all payments to be made by it
hereunder without any Tax Deduction, unless a Tax Deduction is
required by law or by any relevant double taxation agreement
if applicable.
(b) The Borrower or a Lender shall promptly upon becoming aware
that the Borrower must make a Tax Deduction (or that there is
any change in the rate or the basis of a Tax Deduction) notify
the Facility Agent accordingly. If the Facility Agent receives
such notification from a Lender it shall notify the Borrower.
(c) If a Tax Deduction is required by paragraph (a) above to be
made by the Borrower in the circumstances set out in paragraph
(d) below, the amount of the payment due from the Borrower
shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would
have been due if no Tax Deduction had been required.
(d) The circumstances referred to in paragraph (c) above are where
a person entitled to the payment:
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(i) is a Qualifying Lender, except to the extent that (in
the case of an Italian Lender) the Tax Deduction is
required by reason of that Italian Lender ceasing to
lend out of a Facility Office located in Italy or (in
the case of a Treaty Lender) as a result of the
failure of that Lender to comply with paragraph (g)
below; or
(ii) is not or has ceased to be a Qualifying Lender to the
extent that this altered status results from any
change after the date of this Agreement in (or in the
prevailing interpretation, administration, or
application of) any law or double taxation agreement
or any published practice or published concession of
any applicable authorities; or
(iii) is not or has ceased to be a Qualifying Lender as a
result of the actions or omissions to act of the
Borrower or if the Borrower would be required by the
relevant Italian taxing authority to make a Tax
Deduction irrespective of whether such person is a
Qualifying Lender.
(e) If the Borrower is required to make a Tax Deduction, the
Borrower shall make that Tax Deduction and any payment
required in connection with that Tax Deduction within the time
allowed and in the minimum amount required by law.
(f) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Borrower shall deliver to the Facility Agent for the Finance
Party entitled to the payment evidence reasonably satisfactory
to that Finance Party that the Tax Deduction has been made or
(as applicable) any appropriate payment paid to the relevant
taxing authority.
(g) A Treaty Lender and the Borrower shall co-operate in promptly
completing any procedural formalities necessary for the
Borrower to obtain authorisation to make that payment without
a Tax Deduction or with a smaller Tax Deduction, as the case
may be.
12.3 Tax indemnity
(a) The Borrower shall (within five Business Days of demand by the
Facility Agent) pay to a Protected Party an amount equal to
the loss, liability or cost which that Protected Party (acting
in good faith) determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that
Protected Party.
(b) Paragraph (a) above shall not apply with respect to any Tax
assessed on a Finance Party:
(i) under the law of the jurisdiction in which 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) under the law of the jurisdiction in which 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 received or receivable (but not any sum deemed to
be received or receivable) by that Finance Party.
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(c) A Protected Party making, or intending to make a claim
pursuant to paragraph (a) above shall promptly notify the
Facility Agent of the event which will give, or has given,
rise to the claim (and in any event within 90 days of such
event), following which the Facility Agent shall notify the
Borrower.
(d) A Protected Party shall, on receiving a payment from the
Borrower under this Clause 12.3, notify the Facility Agent.
12.4 Tax Credit
If the Borrower makes a Tax Payment and the relevant Finance Party
determines (in its sole discretion but acting in good faith) that:
(i) a Tax Credit is attributable to that Tax Payment; and
(ii) that Finance Party has obtained, utilised and retained that
Tax Credit,
the Finance Party shall pay an amount to the Borrower which that Finance
Party determines (in its sole discretion but acting in good faith) will
leave it (after that payment) in the same after-Tax position as it would
have been in had the Tax Payment not been made by the Borrower.
12.5 Tax and Other Affairs
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever
manner it thinks fit, oblige any Finance Party to claim any credit,
relief, remission or repayment in respect of any payment under Clause
12 (Tax Gross Up and Indemnities) in priority to any other credit,
relief, remission or repayment available to it nor oblige any Finance
Party to disclose any information relating to its tax or other affairs
or any computations in respect thereof.
12.6 Stamp taxes
The Borrower shall pay and, within five Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes (including, without limitation, imposta
sostitutiva, if any) payable in respect of any Finance Document.
12.7 Value added tax
(a) All consideration payable under a Finance Document by the
Borrower to a Finance Party shall be deemed to be exclusive of
any VAT. If VAT is chargeable with respect to any
consideration payable under a Finance Document by the Borrower
to a Finance Party, the Borrower shall pay to the Finance
Party (in addition to and at the same time as paying the
consideration) an amount equal to the amount of the VAT.
(b) Where a Finance Document requires the Borrower to reimburse a
Finance Party for any costs or expenses, the Borrower shall
also at the same time pay and indemnify that Finance Party
against all VAT incurred by that Finance Party in respect of
the costs or expenses save to the extent that that Finance
Party is entitled to repayment or credit in respect of the
VAT.
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13. INCREASED COSTS
13.1 Increased costs
(a) Subject to Clause 13.3 (Exceptions) the Borrower shall, within
five Business Days of a demand by the Facility Agent, pay for
the account of a Lender the amount of any Increased Costs
incurred by that Lender or any of its Affiliates as a result
of (i) the introduction of or any change in (or in the
interpretation or application of) any applicable law or
regulation (including any law or regulation relating to
taxation, monetary union, or reserve asset, special deposit,
cash ratio, liquidity or capital adequacy requirements or any
other form of banking or monetary control) or (ii) the
compliance with any requirement of any central bank or other
fiscal, monetary or other authority empowered to regulate
banking activities and/or financial services, in each case
having the force of law but if not having the force of law
being a regulation, treaty, official directive or rule which
it is the usual practice of banks in the relevant jurisdiction
to comply with (such change in law or interpretation or
administration or request or requirement being made after the
date of this Agreement).
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Lender or any Affiliate of
such Lender to the extent that it is attributable to that
Lender having entered into its Commitment or funding or
performing its obligations under any Finance Document.
13.2 Increased cost claims
(c) A Lender intending to make a claim pursuant to Clause 13.1
(Increased costs) shall notify the Facility Agent of the event
giving rise to the claim and shall provide a certificate
setting out (in reasonable detail) the calculation and cause
of the amounts being claimed, within 90 days of such event,
following which the Facility Agent shall promptly notify the
Borrower thereof and provide such certificate to the Borrower
provided that nothing herein shall require that a Lender
disclose any confidential information to the Borrower.
13.3 Exceptions
(a) Clause 13.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) resulting from any change, request or requirement
relating to the rate of tax on the overall net income
or gains of a Lender claiming under this Clause 13
imposed in the jurisdiction in which it is
incorporated or in which its Facility Office is
located;
(ii) attributable to a Tax Deduction or compensated for by
Clause 12.3 (Tax indemnity) (or would have been
compensated for under Clause 12 (Tax Gross-Up and
Indemnities) but was not so compensated solely
because the exclusion in paragraph (b) of
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Clause 12.3 (Tax indemnity) applied) or expressly
compensated by the operation of another provision
hereof, if any; or
(iii) attributable to the wilful breach by the relevant
Finance Party or its Affiliates of any law or
regulation or the gross negligence of any of them.
(b) In this Clause 13.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 12.1 (Definitions).
14. OTHER INDEMNITIES
14.1 Currency indemnity
(a) If any sum due from the Borrower under the Finance Documents
(a "Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of:
(i) making or filing a claim or proof against the
Borrower;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration
proceedings,
the Borrower shall as an independent obligation, within five
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising
out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and
(B) the rate or rates of exchange available to that person at
the time of its receipt of that Sum.
(b) The Borrower waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
14.2 Other indemnities
The Borrower shall, within five Business Days of demand, indemnify each
Lender against any cost, loss or liability incurred by that Lender as a
result of:
(a) the occurrence of any Event of Default;
(b) a failure by the Borrower to pay any amount due under a
Finance Document on its due date, including without
limitation, any cost, loss or liability arising as a result of
Clause 25 (Sharing among the Lenders);
(c) each Lender against any cost or loss it may suffer including
any reduction in the rate of return it would have received but
for performing its obligations under this Agreement as a
result of any minimum reserve requirements imposed on it by
the European Central Bank (the <>) in relation to a Loan
or funding a Loan or as a result of compliance with any
requirements of the Financial Services Authority (the <>)
provided, however, that the Facility Agent shall promptly
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notify the Borrower of any such applicable ECB or FSA
requirements and any relevant changes to such requirements;
(d) each Finance Party and in each case each of their affiliates
and each of their respective officers, directors, employees,
advisors and representatives (each, an "Indemnified Party")
from and against any and all cost, loss or liability
(including, without limitation, fees and disbursements of
legal counsel), joint or several, that may be incurred by or
asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or relating to any
bankruptcy, criminal or similar official investigation,
litigation or proceeding or the preparation of any defence
with respect thereto, arising out of or in connection with or
relating to the Finance Documents or the transactions
contemplated hereby or thereby, except to the extent that such
cost, loss or liability results from such Indemnified Party's
gross negligence or wilful misconduct;
(e) funding, or making arrangements to fund, its participation in
a Loan requested by the Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default
or gross negligence by that Lender alone); or
(f) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by the Borrower.
14.3 Indemnity to the Facility Agent
The Borrower shall promptly indemnify the Facility Agent against any
cost, loss or liability incurred by the Agent (acting reasonably) as a
result of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) acting or relying on any notice, request or instruction which
it reasonably believes to be genuine, correct and
appropriately authorised.
15. MITIGATION BY THE LENDERS
15.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrower,
take all reasonable steps to mitigate any circumstances which
arise and which would result in any amount becoming payable
under, or cancelled pursuant to, any of Clause 7.1
(Illegality), Clause 12 (Tax gross-up and indemnities) or
Clause 13 (Increased costs) including (but not limited to)
transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations
of the Borrower under the Finance Documents.
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15.2 Limitation of liability
(a) The Borrower shall indemnify each Finance Party for all costs
and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under Clause 15.1 (Mitigation)
following any consultation pursuant to clause 15.1(a)
(Mitigation) above.
(b) A Finance Party is not obliged to take any steps under Clause
15.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
SECTION 7
COSTS AND EXPENSES
16. COSTS AND EXPENSES
16.1 Transaction expenses
The Borrower shall promptly on demand pay the Facility Agent and the
Mandated Lead Arrangers the amount of all reasonable costs and expenses
(including agreed legal fees) reasonably incurred by any of them in
connection with the negotiation, preparation, printing, execution and
syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement
provided that the aggregate of such costs (excluding legal fees) shall
not exceed euro 50,000 in aggregate.
16.2 Amendment costs
If (a) the Borrower requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 26.9 (Change of currency), the
Borrower shall, within five Business Days of demand, reimburse the
Facility Agent for the amount of all costs and expenses (including
legal fees) reasonably incurred by the Facility Agent in responding to,
evaluating, negotiating or complying with that request or requirement.
16.3 Enforcement costs
The Borrower shall, within five Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
17. REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 17 to each Finance Party on the date of this Agreement.
17.1 Status
(a) It is a corporation, 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.
17.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law as at the date of this
Agreement limiting its obligations which are specifically referred to
in any legal opinion delivered pursuant to Clause 4 (Conditions of
Utilisation), legal, valid, binding and enforceable obligations.
17.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not conflict
with:
(a) any law or regulation applicable to it;
(b) it constitutional documents; or
(c) any agreement or instrument binding upon it or any of its
assets.
17.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
17.5 Consents and approvals
All authorisations necessary for the conduct of its business as carried
on at the date hereof have been, or when required will be obtained,
their terms and conditions have been complied with in all material
respects and they have been and, so far as it is aware, will not be
revoked or otherwise terminated.
17.6 Principal Business
Its principal business is and will be that of a holding company
established for the purpose of holding a participation in Olivetti and
it does not and will not carry on any business which is not, as at the
date hereof, permitted by its constitutional documents.
17.7 Financial Indebtedness and Other Liabilities
It has not incurred any Financial Indebtedness or other liabilities
save for:
(a) Permitted Financial Indebtedness;
(b) any indebtedness under any Zero Coupon Instrument;
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(c) any indebtedness in connection with any interest rate swap
entered into by the Borrower in relation to the interest rate
exposure arising under the Junior Loan Agreements;
(d) any indebtedness for moneys borrowed on normal commercial
terms (including, with respect to market rates of interest)
provided that (a) the aggregate principal amount thereof does
not exceed EUR300,000,000 at any time and (b) no security is
granted, at any time, by the Borrower with respect to any such
indebtedness; and
(e) other liabilities (other than Financial Indebtedness) which do
not, in aggregate, exceed EUR50,000,000 (or its equivalent) at
any time.
17.8 Validity and admissibility in evidence
All Authorisations required by it:
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which
it is a party; and
(b) to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
17.9 Governing law and enforcement
(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 Clause 4
(Conditions of Utilisation).
(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 Clause 4
(Conditions of Utilisation).
17.10 Deduction of Tax
It is not required under the law of its jurisdiction of incorporation
to make any deduction for or on account of Tax from any payment it may
make under any Finance Document to any Lender which is an Italian
Lender.
17.11 No filing or stamp taxes
Under the law of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents
(but not for the avoidance of doubt, the Acquisition Documents),
subject to any applicable qualifications of law as at the date of this
Agreement which are specifically referred to in any legal opinion
delivered pursuant to Clause 4 (Conditions of Utilisation).
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17.12 No Winding-up
It has not taken any corporate action nor have any other steps been
taken or legal proceedings been started or (to the best of its
knowledge and belief having made all reasonable enquiry) threatened
against it for its winding-up, dissolution, administration
(amministrazione), controlled administration (amministrazione
controllata) or re-organisation (whether by voluntary arrangement,
scheme of arrangement or otherwise) or for the enforcement of any
Security over all or any of its revenues or assets or for the
appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee, or similar officer of it or of any or
all of its assets.
17.13 No default
(a) No Event of Default is continuing or would result from the
making of any Utilisation.
(b) No other event or circumstance is outstanding which
constitutes a default under any other agreement or instrument
which is binding on it or to which its assets are subject to
an extent or in a manner which would have a Material Adverse
Effect.
17.14 No misleading information
(a) All written information supplied by it was true, complete and
accurate in all material respects as at the date it was given
and was not misleading in any material respect as at the date
thereof.
(b) Any factual information contained in the Information
Memorandum was true and accurate in all material respects as
at the date it was provided or as at the date (if any) at
which it was stated and it is not aware of any information the
omission of which renders the information contained in the
Information Memorandum inaccurate or misleading in any
material respect as at the date thereof.
17.15 Permitted Security
No Security exists over all or any of its present or future revenue or
assets (other than as contemplated by the Finance Documents) and other
than as permitted under Clause 19.4 (Negative Pledge).
17.16 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
17.17 Acquisition Documents
There are no liabilities or unperformed obligations of the Borrower
under the Acquisition Documents and the Acquisition Documents delivered
pursuant to Clause 4 (Conditions of Utilisation) are the only
Acquisition Documents the terms of which have been reduced into
writing.
17.18 No proceedings pending or threatened
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
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Adverse Effect, have been started or (to the best of its knowledge and
belief) threatened against it.
17.19 No Prior Trading
Save as contemplated by, or otherwise in connection with this
Agreement, the Finance Documents, the Junior Finance Documents, the
Bridge Facility and the Acquisition Documents and the transactions
contemplated hereby or thereby, the Borrower has not traded or
undertaken any commercial activities of any kind and has no liabilities
or obligations (actual or contingent).
17.20 Repetition
The Repeating Representations are deemed to be made by the Borrower (by
reference to the facts and circumstances then existing) on the date of
each Utilisation Request and the first day of each Interest Period.
18. INFORMATION UNDERTAKINGS
The undertakings in this Clause 18 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
18.1 Financial statements
The Borrower shall supply to the Facility Agent in sufficient copies
for all the Lenders:
(a) as soon as the same become available, but in any event within
180 days after the end of each of its financial years its
audited financial statements for that financial year;
(b) as soon as the same become available, but in any event within
120 days after the end of each half of each of its financial
years its financial statements for that financial half year,
if any; and
(c) as soon as the same become available, but in any event within
60 days after the end of each quarter of each of its financial
years its financial statements for that period, if any.
18.2 Requirements as to financial statements
(a) The Borrower shall procure that each set of financial
statements delivered pursuant to Clause 18.1 (Financial
statements) is prepared using GAAP.
(b) The Borrower shall ensure that each set of financial
statements delivered pursuant to this Clause 18 is prepared
using accounting policies, practices and procedures consistent
with those applied in the preparation of its Original
Financial Statements (to the extent practicable using normal
period-end adjustments for quarterly and semi-annual accounts)
unless, in relation to any such set of financial statements,
it notifies the Facility Agent that there have been one or
more changes in any such accounting policies, practices and
procedures and its auditors provide (A) a description of the
changes and the adjustments which would be required to be made
to those financial statements in order to cause them to use
the accounting policies, practices and procedures upon which
the Original Financial Statements were prepared; and (B)
sufficient information, in such detail and format as may be
reasonably required by the Facility Agent, to enable the
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Lenders to make an accurate comparison between the financial
position indicated by those financial statements and the
Original Financial Statements.
(c) If there has been a change in accounting policies, practices,
procedures or reference period and the description and
information required by Clause 18.2 (b) have been provided by
the auditors in connection with such change, then such change
shall become part of the normal accounting policies,
practices, procedures and reference period as if it were used
in the preparation of the Original Financial Statements.
18.3 Financial Testing
(a) The financial ratio set out in Clause 20.14 (Financial
Condition) shall be tested by reference to each compliance
certificate delivered pursuant to paragraph (b) below.
(b) The Borrower shall ensure that each set of financial
statements provided by it pursuant to Clause 18.1(b) is
accompanied by a compliance certificate signed by a director
on behalf of the Borrower, that sets out a calculation in
reasonable detail of the Net Worth and the Net Debt as at such
Ratio Calculation Date and is prepared in such detail and
accompanied by such information as the Facility Agent shall
reasonably require in order to verify the ratio set out
therein.
18.4 Information: miscellaneous
The Borrower shall supply to the Facility Agent (in sufficient copies
for all the Lenders, if the Facility Agent so requests):
(a) all documents dispatched by the Borrower to its shareholders
(in their capacity as such) or its creditors generally as soon
as practicable after the same are dispatched;
(b) promptly upon becoming aware of them, the details of any
material litigation, arbitration or administrative proceedings
which are current, threatened or pending against the Borrower;
and
(c) promptly after a request from the Facility Agent, such
information as is necessary for the calculation of the
Olivetti Net Asset Value; and
(d) promptly, such further information regarding the financial
condition, business and operations of the Borrower as any
Finance Party (through the Facility Agent) may reasonably
request, except to the extent that disclosure of the
information would breach any law, regulation, stock exchange
requirement or duty of confidentiality.
18.5 Notification of default
(a) The Borrower shall 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.
(b) Promptly upon a request by the Facility Agent, the Borrower
shall supply to the Facility Agent a certificate signed by two
of its directors or senior officers on its behalf certifying
that no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to
remedy it).
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19. GENERAL UNDERTAKINGS
The undertakings in this Clause 19 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
19.1 Legal Validity and Authorisations
The Borrower shall (subject to paragraph (a) of Clause 19.6 (Merger and
other reconstructions) do all such things as are necessary to maintain
its existence as a legal person and shall promptly:
(a) obtain, comply with and do all that is necessary to maintain
in full force and effect; and
(b) supply certified copies to the Facility Agent of,
any Authorisation required by it under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.
19.2 Compliance with laws
The Borrower shall comply in all respects with all laws to which it may
be subject, if failure so to comply would materially impair its ability
to perform its obligations under the Finance Documents.
19.3 Claims Pari Passu
The Borrower shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least pari passu
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by any rules of general
application.
19.4 Negative pledge
(a) The Borrower shall not create or permit to subsist any
Security over any of its assets other than as contemplated by
the Finance Documents.
(b) The Borrower shall not:
(i) sell, transfer or otherwise dispose of any of its
assets on terms whereby they are or may be leased to
or re-acquired by the Borrower;
(ii) sell, transfer or otherwise dispose of any of its
receivables on recourse terms;
(iii) enter into any arrangement under which money or the
benefit of a bank or other account may be applied,
set-off or made subject to a combination of accounts;
or
(iv) enter into any other preferential arrangement having
a similar effect,
in circumstances where the arrangement or transaction is
entered into primarily as a method of raising Financial
Indebtedness or of financing the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
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(i) any cash management, netting or set-off arrangements
entered into by the Borrower in the ordinary course
of its business; or
(ii) any lien arising by operation of law and in the
normal course of business.
19.5 Financial Indebtedness
The Borrower shall not incur, create or permit to subsist or have
outstanding any Financial Indebtedness or other liabilities enter into
any agreement or arrangement whereby it is entitled to incur, create or
permit to subsist any Financial Indebtedness or other liabilities other
than:
(a) Permitted Financial Indebtedness;
(b) any indebtedness under any Zero Coupon Instrument [provided
that no security is granted, at any time, by the Borrower with
respect to such indebtedness];
(c) any indebtedness in connection with any interest rate swap
entered into by the Borrower in relation to the interest rate
exposure arising under the Junior Loan Agreements;
(d) any indebtedness for moneys borrowed on normal commercial
terms (including, with respect to market rates of interest)
provided that (a) the aggregate principal amount thereof does
not exceed EUR300,000,000 at any time and (b) no security is
granted, at any time, by the Borrower with respect to any such
indebtedness; and
(e) other liabilities (other than Financial Indebtedness) which do
not, in aggregate, exceed EUR50,000,000 (or its equivalent at
any time).
19.6 Merger and other reconstructions
(a) The Borrower shall not, without the prior written consent of
the Lenders (not to be unreasonably withheld) enter into any
amalgamation, merger, demerger or consolidation with any
person or participate in any other type of corporate
reconstruction having a similar or analogous effect to any of
the foregoing. Any reference to the Borrower in any Finance
Document shall be read and construed accordingly.
(b) The Borrower shall procure that Olivetti shall not, without
the prior written consent of the Lenders (not to be
unreasonably withheld), enter into any amalgamation, merger,
demerger or consolidation with any person or participate in
any other type of corporate reconstruction having a similar or
analogous effect to any of the foregoing provided that no such
consent shall be required in the case of any merger,
amalgamation or consolidation or demerger or participation in
any type of corporate reconstruction having a similar or
analogous effect to any of the foregoing, to the extent the
person or persons that result from any such transaction or
that succeed to the assets and liabilities as a result
thereof, in each case is a member of the Olivetti Group. Any
reference to Olivetti or TI in any Finance Document shall be
read and construed accordingly.
For the purposes of this Clause 19.6, <> means Olivetti
and each of those companies whose financial statements are from time to
time consolidated with those of Olivetti in accordance with GAAP.
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19.7 Filing of Tax Returns
The Borrower shall file or cause to be filed all tax returns required
to be filed by it in all jurisdictions in which it is situated or
carries on business or otherwise subject to pay tax and will promptly
pay all taxes (including any applicable stamp duty payable in relation
to the Finance Documents) which are due and payable on such returns or
any assessment made against them except to the extent contested in good
faith.
19.8 Further acquisition of Olivetti Ordinary Shares
The Borrower shall not make any acquisition of ordinary shares or
subscribe any equity issuance of Olivetti if such acquisition or
subscription (when aggregated with the Olivetti Shares and any other
ordinary shares of Olivetti acquired or subscribed by the Borrower
after the date hereof) would require the Borrower to launch a mandatory
bid under Italian law for the entire issued share capital of Olivetti.
19.9 Disposal of Olivetti Ordinary Shares
The Borrower shall not dispose of any part of the Olivetti Collateral
provided that this restriction shall not prevent the Borrower from
disposing of any ordinary shares or warrants of Olivetti or any
Convertible Bonds acquired by it which do not form part of the Olivetti
Collateral, if such disposal is otherwise carried out in accordance
with the terms of this Agreement, nor from exercising its subscription
or conversion rights under any warrants of Olivetti or Convertible
Bonds provided further that to the extent that any such warrants or
Convertible Bonds formed part of the Olivetti Collateral prior to any
such conversion rights, any shares that result from the conversion of
such warrants or Convertible Bonds will be secured in favour of the
Finance Parties in a manner acceptable to them (acting reasonably).
19.10 Dividends
The Borrower shall not pay, make or declare any dividend or other
distribution in respect of any of its financial years unless: (i) it
has complied with all applicable statutory and accounting requirements
therefor; and (ii) at the proposed date for payment of such dividend or
other distribution, no Event of Default has occurred and is continuing.
19.11 Hedging
The Borrower shall:
(a) within three Months of the date of this Agreement enter into
hedging arrangements ("Hedging Arrangements") in order to fix
or cap (for a minimum period ending 5 years from the date of
this Agreement) the total interest cost of the Borrower in
respect of at least 50% of the Loans outstanding on the date
such Hedging Arrangements are entered into; and
(b) within the following six Months enter into further Hedging
Arrangements with Hedge Provider(s) in order to fix or cap
(for a minimum period ending 5 years from the date of this
Agreement) the total interest cost of the balance of the Loans
outstanding on the date such Hedging Arrangements are entered
into,
(c) in each case in accordance with the Hedging Policy Letter.
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19.12 Syndication
The Borrower shall comply in all material respects with its obligations
under the Syndication Letter.
19.13 Security
(a) The Borrower shall take all such action as the Facility Agent
or the Security Agent may reasonably require for the purpose
of perfecting or protecting such Agent's or the Lenders'
rights under and preserving the security interests intended to
be created or evidenced by any of the Finance Documents and
following the making of any declaration pursuant to Clause
20.16 (Acceleration) for facilitating the realisation of any
such security or any part thereof.
(b) Promptly following: (1) the execution of the Hedging
Arrangements and (2) the purchase or subscription of any
shares or warrants in Olivetti or any Convertible Bonds or the
exercise of any conversion rights under such warrants and/or
Convertible Bonds into Olivetti shares, the purchase price or
subscription monies or exercise price of which has been
financed in whole or in part with the proceeds of any Loan
(and in any event within 5 Business Days of such event), the
Borrower shall create or procure the creation of a first
ranking pledge or other Security in respect of its claims
under such agreements and/or (as the case may be) such shares,
warrants or bonds in favour of the Finance Parties to secure
all or any of its obligations under the Finance Documents. To
the extent practicable, such Security Documents shall be
substantially in the form of the Security Document referred in
paragraph (a) of the definition of Security Documents or shall
otherwise be in form and substance satisfactory to the
Security Agent (acting on the instructions of the Lenders)
(acting reasonably).
19.14 Documents
(a) The Borrower shall not amend, vary, novate, supplement or
terminate any of the material terms of the Acquisition
Documents, the Junior Loan Agreements or any term of its
constitutional documents or any Subordinated Shareholder Loan,
or waive any material right thereunder other than any
amendment or variation which is consistent with the terms of
this Agreement or which, in the case of its constitutional
documents, might reasonably be expected not to materially and
adversely to affect the interests of the Lenders.
(b) The Borrower shall provide the Agent with a copy of each
Subordinated Shareholder Loan promptly following its
execution.
20. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 20 is an
Event of Default.
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20.1 Non-payment
The Borrower does not pay on the due date any amount payable pursuant
to a Finance Document at the place at and in the currency in which it
is expressed to be payable unless payment is made within 3 Business
Days of its due date.
20.2 Other obligations
(a) The Borrower does not comply with any provision of the Finance
Documents (other than those referred to in Clause 20.1
(Non-payment).
(b) No Event of Default under paragraph (a) above in relation to
Clause 18.1 (Financial Statements), 19.1 (Legal Validity and
Authorisations), 19.2 (Compliance with laws), 19.5 (Financial
Indebtedness), 19.7 (Filing of Tax returns), 19.11 (Hedging)
or 19.12 (Syndication) will occur if the failure to comply is
capable of remedy and is remedied within:
(i) (in relation to Clause 18.1 (Financial Statements))
30 days; or
(ii) (in relation to Clauses 19.1 (Legal Validity and
Authorisations), 19.2 (Compliance with laws), 19.5
(Financial Indebtedness), 19.7 (Filing of Tax
returns), 19.11 (Hedging) or 19.12 (Syndication)) 15
days,
of the Facility Agent giving notice to the Borrower or the
Borrower becoming aware of the failure to comply.
20.3 Misrepresentation
(a) Any representation or statement made or deemed to be made by
the Borrower in the Finance Documents or any other document
delivered by or on behalf of Borrower under or in connection
with any Finance Document is or proves to have been incorrect
or misleading in any material respect when made or deemed to
be made.
(b) No Event of Default under paragraph (a) above will occur if
the misrepresentation or misstatement, or the circumstance
giving rise to it, is/are capable of remedy and is/are
remedied within 30 days of the earlier of (a) the Facility
Agent giving notice to the Borrower requiring such remedy and
(b) the Borrower becoming aware of the relevant
misrepresentation or misstatement or the circumstance giving
rise to it.
20.4 Cross default
(a) Any Financial Indebtedness of the Borrower or Olivetti is not
paid when due nor within any applicable grace period under any
document relating thereto save (in the case of Olivetti only)
where such obligation is being contested in good faith.
(b) Any Financial Indebtedness of the Borrower or Olivetti is
declared to be or otherwise becomes due and payable prior to
its specified maturity as a result of an event of default
(however described).
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(c) Any commitment for any Financial Indebtedness of the Borrower
or Olivetti is cancelled or suspended by any creditor thereof
as a result of an event of default (however described).
(d) Any creditor of the Borrower or Olivetti becomes entitled to
declare any Financial Indebtedness of the Borrower or Olivetti
due and payable prior to its specified maturity as a result of
an event of default (however described).
(e) No Event of Default will occur under this Clause 20.4 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d)
above is less than EUR50,000,000 (or its equivalent in any
other currency or currencies).
(f) No Event of Default will occur under this Clause 20.4 in
respect of any derivative transaction entered into (in the
case of the Borrower only) in accordance with the provisions
of this Agreement as a result of an event of default (however
described) with respect to the counterparty or a credit
support provider for or specified entity of the counterparty,
rather than with respect to the Borrower or Olivetti.
20.5 Insolvency
(a) The Borrower is unable or admits inability to pay its debts as
they fall due or by reason of actual or anticipated financial
difficulties, it suspends making payments on any of its debts
or commences negotiations with one or more of its creditors
with a view to rescheduling any of its indebtedness.
(b) The value of the assets of the Borrower is less than its
liabilities (taking into account contingent and prospective
liabilities).
(c) A moratorium is declared in respect of any indebtedness of the
Borrower.
20.6 Insolvency proceedings
(a) A shareholders' resolution is passed or an order is made for
the winding-up or dissolution of, or a liquidator,
administrator, compulsory manager or other similar officer is
appointed in respect of, the Borrower.
(b) A shareholders' resolution is passed, or an order is made, or
an agreement is entered into or proposed by the Borrower, for
the suspension of payments by, a moratorium of any
indebtedness of, or a general composition or assignment for
the benefit of the creditors of, the Borrower.
(c) A receiver, administrative receiver, compulsory manager or
other similar officer is appointed in respect of the Borrower
or any of its assets, or any Security is enforced over the
Borrower's assets, having an aggregate value of and in respect
of indebtedness aggregating not less than EUR5,000,000.
(d) Any analogous procedure or step to the foregoing is taken with
respect to the Borrower or its assets in any applicable
jurisdiction.
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(e) No Event of Default shall occur under this Clause 20.6 in
relation to any merger or other corporate reorganisation
permitted under Clause 19.6 (Merger and other
reconstructions).
20.7 Creditors' process
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of the Borrower having an aggregate value
of and in respect of indebtedness aggregating EUR5,000,000 which is not
discharged within 30 days and which during such period is contested in
good faith by appropriate means diligently pursued.
20.8 Failure to comply with final judgement
The Borrower fails to comply with or pay any sum due from it under any
final judgement or any final order made or given by any court of
competent jurisdiction, in each case for an aggregate value of
EUR5,000,000.
20.9 Unlawfulness
It is or becomes unlawful for the Borrower to perform any of its
material obligations under the Finance Documents.
20.10 Repudiation
The Borrower repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
20.11 Governmental Intervention
By or under the authority of any government:
(a) the management of the Borrower is wholly or in its majority
displaced or the authority of the Borrower in the conduct of
its business is wholly or partially curtailed; or
(b) all or a majority of the issued shares of the Borrower or the
whole or any material part of its revenues or assets is
seized, nationalised, expropriated or compulsorily acquired.
20.12 Security
The Security Documents cease to confer valid and enforceable, first
ranking Security of the type described therein over the assets referred
to therein, except as a result of a release of the relevant assets.
20.13 Corporate Structure
Pirelli and/or any Permitted Transferee ceases to own and control at
least 30% of the ordinary issued share capital and voting rights in the
Borrower.
20.14 Financial Condition
At any time, the ratio of Net Debt to Net Worth is less than 1.00:1.00.
For the purpose of this Clause 20.14:
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(a) <> means, at any Ratio Calculation Date, the
aggregate principal amount of all obligations of the Borrower
for or in respect of Financial Indebtedness (including,
without limitation, any Permitted Financial Indebtedness but
excluding Subordinated Shareholder Loans) minus Cash
Equivalent Collateral.
(b) "Net Worth" means at any Ratio Calculation Date the aggregate
of:
(i) the amounts paid up or credited as paid up on the
issued share capital of the Borrower and any amount
advanced under a Subordinated Shareholder Loan;
(ii) the aggregate amount of the<>,<> and <>;
(iii) any retained earnings of the Borrower;
(iv) any balance standing to the credit of the profit and
loss account of the Borrower,
minus
(v) any retained losses of the Borrower;
(vi) any debit balance on the profit and loss account of
the Borrower;
(vii) (to the extent included) any amount shown in respect
of goodwill (including goodwill arising only on
consolidation) or other intangible assets of the
Borrower;
(viii) (to the extent included) any amount set aside for
taxation (whether deferred or otherwise), or bad
debts;
(ix) (to the extent included) any amounts arising from an
upward revaluation of assets; and
(x) (to the extent included) any dividend made, paid or
declared by the Borrower,
and for the purposes of the above, no amount shall be
effectively deducted or credited more than once.
(c) <>means 30 June and 31 December.
20.15 Material Adverse Change
Any event or circumstance occurs which the Majority Lenders reasonably
believe has or will have a Material Adverse Effect.
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20.16 Acceleration
On and at any time after the occurrence of an Event of Default which is
continuing the Facility Agent may, and shall if so directed by the
Majority Lenders, by notice to the Borrower:
(a) cancel the Total Commitments whereupon they shall immediately
be cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by
the Facility Agent on the instructions of the Majority
Lenders;
(d) declare that the Security Documents (or any of them) have
become enforceable and inform the Security Agent accordingly.
SECTION 9
CHANGES TO PARTIES
21. CHANGES TO THE LENDERS
21.1 Assignments and transfers by the Lenders
Subject to this Clause 21, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution (the "New Lender").
21.2 Conditions of assignment or transfer
(a) An assignment will only be effective on receipt by the
Facility Agent of written confirmation from the New Lender (in
form and substance satisfactory to the Facility Agent) that
the New Lender will assume the same obligations to the other
Finance Parties as it would have been under if it was an
Original Lender.
(b) A transfer will only be effective if the procedure set out in
Clause 21.5 (Procedure for transfer) is complied with.
(c) Prior to the Syndication Date, a transfer will only be
effective subject to the provisions of the Syndication Letter.
(d) After the Syndication Date, if:
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(i) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes
its Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, the Borrower
would be obliged to make a payment to the New Lender
or Lender acting through its new Facility Office
under Clause 12 (Tax gross-up and indemnities) or
Clause 13 (Increased costs) or Clause 14.2(c) (Other
Indemnities),
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting
through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
21.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Facility Agent (for its own account) a fee of
EUR 2,000.
21.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender
makes no representation or warranty and assumes no
responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of the Borrower;
(iii) the performance and observance by the Borrower of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or
oral) made in or in connection with any Finance
Document or any other document,
and any representations or warranties implied by law are
excluded.
(a) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own
independent investigation and assessment of the
financial condition and affairs of the Borrower and
its related entities in connection with its
participation in this Agreement and has not relied
exclusively on any information provided to it by the
Existing Lender in connection with any Finance
Document; and
(ii) will continue to make its own independent appraisal
of the creditworthiness of the Borrower and its
related entities whilst any amount is or may be
outstanding under the Finance Documents or any
Commitment is in force.
(b) Nothing in any Finance Document obliges an Existing Lender to:
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(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under
this Clause 21; or
(ii) support any losses directly or indirectly incurred by
the New Lender by reason of the non-performance by
the Borrower of its obligations under the Finance
Documents or otherwise.
21.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 21.2 (Conditions
of assignment or transfer) a transfer is effected in
accordance with paragraph (b) below when the Facility Agent
executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender. The
Facility Agent shall, as soon as reasonably practicable after
receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its
rights and obligations under the Finance Documents
the Borrower and the Existing Lender shall be
released from further obligations towards one another
under the Finance Documents and their respective
rights against one another shall be cancelled (being
the "Discharged Rights and Obligations");
(ii) the Borrower and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as the Borrower
and the New Lender have assumed and/or acquired the
same in place of the Borrower and the Existing
Lender;
(iii) each Agent, the Mandated Lead Arrangers, the New
Lender and other Lenders shall acquire the same
rights and assume the same obligations between
themselves as they would have acquired and assumed
had the New Lender been an Original Lender with the
rights and/or obligations acquired or assumed by it
as a result of the transfer and to that extent each
Agent, the Mandated Lead Arrangers and the Existing
Lender shall each be released from further
obligations to each other under this Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
21.6 Disclosure of information
Any Lender may disclose on a need-to-know basis to any of its
Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
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(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, this Agreement or the Borrower; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about the Borrower and the Finance Documents as that
Lender shall consider appropriate if, in relation to paragraphs (a) and
(b) above, the person to whom the information is to be given has entered
into a Confidentiality Undertaking.
21.7 Confidentiality Undertaking
Each Finance Party undertakes with the Borrower to keep confidential
and not to disclose to any person any confidential information
(including any projections) supplied by or on behalf of the Borrower,
in whatever form, otherwise than in connection with the Finance
Documents, without the prior written consent of the Borrower. However,
each Finance Party is entitled to disclose confidential information:
(i) lawfully obtained from any other source, or that is or becomes
public knowledge, other than as a direct or indirect result of
any breach of any obligation of confidentiality of which the
relevant Finance Party has actual knowledge;
(ii) to disclose to any governmental agency of competent
jurisdiction or if required to do so by a court of competent
jurisdiction;
(iii) in connection with any legal proceedings arising out of or in
connection with the Finance Documents;
(iv) to its auditors or legal or other professional advisers; or
(v) as permitted by Clause 21.6 (Disclosure of information) or by
a Confidentiality Undertaking envisaged by that Clause.
22. NO ASSIGNMENT BY THE BORROWER
Subject to Clause 19.6 (Merger and other reconstructions), the Borrower
may not assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
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SECTION 10
THE FINANCE PARTIES
23. ROLE OF THE AGENTS AND THE MANDATED LEAD ARRANGERS
23.1 Appointment of each Agent
(a) Each of the Mandated Lead Arrangers and the Lenders appoints
each Agent to act as its facility agent, security agent or, as
the case may be, collateral monitoring agent under and in
connection with the Finance Documents.
(b) Each of the Mandated Lead Arrangers and the Lenders authorises
each Agent to exercise the rights, powers, authorities and
discretions specifically given to it under or in connection
with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
(c) Each of the Mandated Lead Arrangers and the Lenders appoint
the Security Agent as its Rappresentante Comune for the
purpose of the Security Documents, with power to act as a
Mandatario con Rappresentanza.
23.2 Duties of the Agents
(a) Each Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to such Agent for that
Party by any other Party.
(b) If any Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify
the Lenders.
(c) The Facility Agent shall promptly notify the Lenders of any
Default arising under Clause 20.1 (Non-payment).
(d) The Agents' respective duties under the Finance Documents are
solely mechanical and administrative in nature.
23.3 Role of the Mandated Lead Arrangers
Except as specifically provided in the Finance Documents, the Mandated
Lead Arrangers have no obligations of any kind to any other Party under
or in connection with any Finance Document.
23.4 No fiduciary duties
(a) Nothing in this Agreement constitutes any Agent or any
Mandated Lead Arrangers as a trustee or fiduciary of any other
person.
(b) Neither the Agents nor any Mandated Lead Arrangers shall be
bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.
23.5 Business with the Group
The Agents and the Mandated Lead Arrangers may accept deposits from,
lend money to and generally engage in any kind of banking or other
business with the Borrower.
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23.6 Rights and discretions of the Agents
(a) Each Agent may rely on:
(i) any representation, notice or document believed by it
to be genuine, correct and appropriately authorised;
and
(ii) any statement made by a director, authorised
signatory or employee of any person regarding any
matters which may reasonably be assumed to be within
his knowledge or within his power to verify.
(b) Each Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual
knowledge of a Default arising under Clause 20.1
(Non-payment)); and
(ii) any right, power, authority or discretion vested in
any Party or the Majority Lenders has not been
exercised.
(c) Each Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other
experts.
(d) Each Agent may act in relation to the Finance Documents
through its personnel and agents.
23.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document,
each Agent shall (a) act in accordance with any instructions
given to it by the Majority Lenders (or, if so instructed by
the Majority Lenders, refrain from acting or exercising any
right, power, authority or discretion vested in it as Agent)
and (b) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with such an
instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document,
any instructions given by the Majority Lenders will be binding
on all the Lenders and the Mandated Lead Arrangers.
(c) Each Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or,
if appropriate, the Lenders) each Agent may act (or refrain
from taking action) as it considers to be in the best interest
of the Lenders.
(e) No Agent is authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or
arbitration proceedings relating to any Finance Document.
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23.8 Responsibility for documentation
No Agent nor any Mandated Lead Arrangers:
(a) is responsible for the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by any
Agent, any Mandated Lead Arrangers, the Borrower or any other
person given in or in connection with any Finance Document or
the Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any
other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Finance
Document.
23.9 Exclusion of liability
(a) Without limiting paragraph (b) below, no Agent will be liable
for any action taken by it under or in connection with any
Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer,
employee or agent of any Agent in respect of any claim it
might have against any Agent or in respect of any act or
omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or
agent of any Agent may rely on this Clause.
(c) No Agent will be 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 any Agent if
such 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 such Agent for that purpose.
23.10 Lenders' indemnity to the Agents
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify any
Agent, within five Business Days of demand, against any cost, loss or
liability incurred by such Agent (otherwise than by reason of such
Agent's gross negligence or wilful misconduct) in acting as Agent under
the Finance Documents (unless such Agent has been reimbursed by the
Borrower pursuant to a Finance Document).
23.11 Resignation of the Agents
(a) Any Agent may resign and appoint one of its Affiliates acting
through an office in Milan as successor by giving notice to
the Lenders and the Borrower.
(b) Alternatively an Agent may resign by giving notice to the
Lenders and the Borrower, in which case the Majority Lenders
(after consultation with the Borrower) may appoint a successor
Agent.
(c) If the Majority Lenders have not appointed a successor Agent
in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Agent (after consultation
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with the Borrower) may appoint a successor Agent (acting
through an office in Milan).
(d) The retiring Agent shall, at its own cost, make available to
the successor Agent such documents and records and provide
such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under
the Finance Documents.
(e) An Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 23. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original
Party.
(g) After consultation with the Borrower, the Majority Lenders
may, by notice to the relevant Agent, require such Agent to
resign in accordance with paragraph (b) above. In this event,
such Agent shall resign in accordance with paragraph (b)
above.
23.12 Confidentiality
(a) In acting as agent for the Finance Parties, each Agent shall
be regarded as acting through its agency division which shall
be treated as a separate entity from any other of its
divisions or departments.
(b) If information is received by another division or department
of an Agent, it may be treated as confidential to that
division or department and such Agent shall not be deemed to
have notice of it.
(c) Notwithstanding any other provision of any Finance Document to
the contrary, no Agent nor any Mandated Lead Arrangers are
obliged to disclose to any other person (i) any confidential
information or (ii) any other information if the disclosure
would or might in its reasonable opinion constitute a breach
of any law or a breach of a fiduciary duty.
23.13 Relationship with the Lenders
(d) The Facility Agent may treat each Lender as a Lender, entitled
to payments under this Agreement and acting through its
Facility Office unless it has received not less than five
Business Days prior notice from that Lender to the contrary in
accordance with the terms of this Agreement.
23.14 Credit appraisal by the Lenders
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Facility Agent and the Mandated
Lead Arrangers that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation
of all risks arising under or in connection with any Finance Document
including but not limited to:
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(a) the financial condition, status and nature of the Borrower;
(b) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document;
(c) whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective
assets under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum (if any) and any other information provided by the
Facility Agent, any Party or by any other person under or in
connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document.
23.15 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Facility
Agent shall with the prior consent of the Borrower (such consent not to
be unreasonably withheld or delayed) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
23.16 Facility Agent's Management Time
Any amount payable to the Facility Agent under Clause 14.3 (Indemnity
to the Facility Agent), Clause 16 (Costs and expenses) and Clause 23.10
(Lenders' indemnity to the Agents) shall include the cost of utilising
the Facility Agent's management time or other resources and will be
calculated on the basis of such reasonable daily or hourly rates as the
Facility Agent may notify to the Borrower and the Lenders, and is in
addition to any fee paid or payable to the Facility Agent under Clause
11 (Fees). 24. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision 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 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 computations in
respect of Tax.
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25. SHARING AMONG THE LENDERS
25.1 Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount
from the Borrower other than in accordance with Clause 26 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Lender shall, within three Business Days,
notify details of the receipt or recovery, to the Facility
Agent;
(b) the Facility Agent shall determine whether the receipt or
recovery is in excess of the amount the Recovering Lender
would have been paid had the receipt or recovery been received
or made by the Facility Agent and distributed in accordance
with Clause 26 (Payment mechanics), without taking account of
any Tax which would be imposed on the Facility Agent in
relation to the receipt, recovery or distribution; and
(c) the Recovering Lender shall, within three Business Days of
demand by the Facility Agent, pay to the Facility Agent an
amount (the "Sharing Payment") equal to such receipt or
recovery less any amount which the Facility Agent determines
may be retained by the Recovering Lender as its share of any
payment to be made, in accordance with Clause 26.5 (Partial
payments).
25.2 Redistribution of payments
The Facility Agent shall treat the Sharing Payment as if it had been
paid by the Borrower and distribute it between the Finance Parties
(other than the Recovering Lender) in accordance with Clause 26.5
(Partial payments).
25.3 Recovering Lender's rights
(a) On a distribution by the Facility Agent under Clause 25.2
(Redistribution of payments), the Recovering Lender will be
subrogated to the rights of the Finance Parties which have
shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to
rely on its rights under paragraph (a) above, the Borrower
shall be liable to the Recovering Lender for a debt equal to
the Sharing Payment which is immediately due and payable.
25.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a
Recovering Lender becomes repayable and is repaid by that Recovering
Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 25.2 (Redistribution of payments)
shall, upon request of the Facility Agent, pay to the Facility
Agent for account of that Recovering Lender an amount equal to
its share of the Sharing Payment (together with an amount as
is necessary to reimburse that Recovering Lender for its
proportion of any interest on the Sharing Payment which that
Recovering Lender is required to pay); and
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(b) that Recovering Lender's rights of subrogation in respect of
any reimbursement shall be cancelled and the Borrower will be
liable to the reimbursing Lender for the amount so reimbursed.
25.5 Exceptions
(a) This Clause 25 shall not apply to the extent that the
Recovering Lender would not, after making any payment pursuant
to this Clause, have a valid and enforceable claim against the
Borrower.
(b) A Recovering Lender is not obliged to share with any other
Lender any amount which the Recovering Lender has received or
recovered as a result of taking legal or arbitration
proceedings, if:
(i) it notified the other Lenders of the legal or
arbitration proceedings; and
(ii) the other Lender had an opportunity to participate in
those legal or arbitration proceedings but did not do
so as soon as reasonably practicable having received
notice or did not take separate legal or arbitration
proceedings.
SECTION 11
ADMINISTRATION
26. PAYMENT MECHANICS
26.1 Payments to the Facility Agent
(a) On each date on which the Borrower or a Lender is required to
make a payment under a Finance Document, the Borrower or
Lender shall make the same available to the Facility Agent
(unless a contrary indication appears in a Finance Document)
for value on the due date at the time and in such funds
specified by the Facility Agent as being customary at the time
for settlement of transactions in the relevant currency in the
place of payment.
(b) Payment shall be made to such account in the principal
financial centre of the country of that currency (or, in
relation to euro, in a principal financial centre in a
Participating Member State or London) with such bank as the
Facility Agent specifies.
26.2 Distributions by the Facility Agent
Each payment received by the Facility Agent under the Finance Documents
for another Party shall, subject to Clause 26.3 (Distributions to the
Borrower) and Clause 26.4 (Clawback) be made available by the Facility
Agent as soon as practicable after receipt to the Party entitled to
receive payment in accordance with this Agreement (in the case of a
Lender, for the account of its Facility Office), to such account as
that Party may notify to the Facility Agent by not less than five
Business Days' notice with a bank in the principal financial centre of
the country of that currency (or, in relation to euro, in the principal
financial centre of a Participating Member State or London).
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26.3 Distributions to the Borrower
The Facility Agent may (with the consent of the Borrower or in
accordance with Clause 27 (Set-off)) apply any amount received by it
for the Borrower in or towards payment (on the date and in the currency
and funds of receipt) of any amount due from the Borrower under the
Finance Documents or in or towards purchase of any amount of any
currency to be so applied.
26.4 Clawback
(a) Where a sum is to be paid to the Facility Agent under the
Finance Documents for another Party, the Facility Agent is not
obliged to pay that sum to that other Party (or to enter into
or perform any related exchange contract) until it has been
able to establish to its satisfaction that it has actually
received that sum.
(b) If the Facility Agent pays an amount to another Party and it
proves to be the case that the Agent had not actually received
that amount, then the Party to whom that amount (or the
proceeds of any related exchange contract) was paid by the
Facility Agent shall on demand refund the same to the Facility
Agent together with interest on that amount from the date of
payment to the date of receipt by the Facility Agent,
calculated by the Facility Agent to reflect its cost of funds.
26.5 Partial payments
(a) If the Facility Agent receives a payment that is insufficient
to discharge all the amounts then due and payable by the
Borrower under the Finance Documents, the Facility Agent shall
apply that payment towards the obligations of the Borrower
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 Agents and the
Mandated Lead Arrangers under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any
accrued interest or commission due but unpaid under
this Agreement;
(iii) thirdly, in or towards payment pro rata of any
principal 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 shall, if so directed by the Majority
Lenders, vary the order set out in paragraphs (a)(ii) to (iv)
above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by the Borrower.
26.6 No set-off by the Borrower
All payments to be made by the Borrower under the Finance Documents
shall be calculated and be made without (and free and clear of any
deduction for) set-off or counterclaim.
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26.7 Business Days
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original
due date.
26.8 Currency of account
(a) Subject to paragraphs (b) to (e) below euros is the currency
of account and payment for any sum due from the Borrower under
any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or
Unpaid Sum shall be made in the currency in which that Loan or
Unpaid Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was
denominated when that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be
made in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than
euros shall be paid in that other currency.
26.9 Change of currency
(a) Unless otherwise prohibited by law, if more than one currency
or currency unit are at the same time recognised by the
central bank of any country as the lawful currency of that
country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in,
the currency of that country shall be translated
into, or paid in, the currency or currency unit of
that country designated by the Facility Agent (after
consultation with the Borrower); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other,
rounded up or down by the Facility Agent (acting
reasonably).
(b) If a change in any currency of a country occurs, this
Agreement will, to the extent the Facility Agent (acting
reasonably and after consultation with the Borrower) specifies
to be necessary, be amended to comply with any generally
accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in
currency.
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27. SET-OFF
Whilst an Event of Default is continuing, a Finance Party may set off
any matured obligation due from the Borrower under the Finance
Documents (to the extent beneficially owned by that Finance Party)
against any matured obligation owed by that Finance Party to the
Borrower, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
28. NOTICES
28.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
28.2 Addresses
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in
connection with the Finance Documents is:
(a) in the case of the Borrower, that identified with its name
below;
(b) in the case of each Lender, that notified in writing to the
Facility Agent on or prior to the date on which it becomes a
Party; and
(c) in the case of the Facility Agent, the Security Agent and the
Collateral Monitoring Agent that identified with its name
below,
or any substitute address, fax number or department or officer as the
Party may notify to the Facility Agent (or an Agent may notify to the
other Parties, if a change is made by such Agent) by not less than five
Business Days' notice.
28.3 Delivery
(a) Any communication or document made or delivered by one person
to another under or in connection with the Finance Documents
will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been received at the
relevant address,
and, if a particular department or officer is specified as
part of its address details provided under Clause 28.2
(Addresses), if addressed to that department or officer.
(b) Any communication or document to be made or delivered to an
Agent will be effective only when actually received by such
Agent and then only if it is expressly marked for the
attention of the department or officer identified with such
Agent's signature below (or any substitute department or
officer as such Agent shall specify for this purpose).
(c) All notices from or to the Borrower shall be sent through the
Facility Agent.
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28.4 Notification of address and fax number
Promptly upon receipt of notification of an address, fax number or
change of address or fax number pursuant to Clause 28.2 (Addresses) or
changing its own address or fax number, the Facility Agent shall notify
the other Parties.
28.5 English language
(a) Save as provided in Schedule 2 (Conditions Precedent), any
notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Facility
Agent, accompanied by a certified English translation
and, in this case, the English translation will
prevail unless the document is a constitutional,
statutory or other official document.
29. CALCULATIONS AND CERTIFICATES
29.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
29.2 Certificates and Determinations
Any certification or determination by a Finance Party in relation to
any rate or amount under the Finance Documents will be made in good
faith and will set out in reasonable detail the basis of such
determination or claim (if any) for such rate or amount under any
Finance Document and in the absence of manifest error, will be
conclusive evidence of the matters to which it relates.
29.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
30. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
31. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
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right or remedy prevent any further or other exercise or the exercise
of any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
32. AMENDMENTS AND WAIVERS
32.1 Required consents
(a) Subject to Clause 32.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of
the Majority Lenders and the Borrower and any such amendment
or waiver will be binding on all Parties.
(b) The Facility Agent may effect, on behalf of any Finance Party,
any amendment or waiver permitted by this Clause.
32.2 Exceptions
(a) An amendment or waiver that has the effect of changing or
which relates to:
(i) the definitions of<>,<>, "Majority Lenders", <>, <>,
<>or <>in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any amount
under the Finance Documents;
(iii) a reduction in the Margin or a reduction in the
amount of any payment of principal, interest, fees or
commission payable;
(iv) an increase in Commitment;
(v) change to the Borrower;
(vi) any provision which expressly requires the consent of
all the Lenders;
(vii) Clause 2.2 (Lenders' rights and obligations), Clause
3.1 (Purpose), Clause 21 (Changes to the Lenders) or
this Clause 32; or
(viii) release of any security interest created pursuant to
the Security Documents other than pursuant to the
Collateral Release Certificate,
shall not be made without the prior consent of all the
Lenders.
(b) An amendment or waiver which relates to the rights or
obligations of any Agent or any Mandated Lead Arrangers may
not be effected without the consent of such Agent or the
Mandated Lead Arrangers.
33. COUNTERPARTS
Each Finance Document 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 the Finance Document.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
34. GOVERNING LAW
This Agreement is governed by English law.
35. ENFORCEMENT
35.1 Jurisdiction of English courts
(a) The courts of England have exclusive jurisdiction to settle
any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 35.1 is for the benefit of the Finance Parties
only. As a result, no Finance Party shall be prevented from
taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
35.2 Service of process
Without prejudice to any other mode of service allowed under any
relevant law, the Borrower:
(a) irrevocably appoints Pirelli International Limited, 00
Xxxxxxxxx Xxxxxx, Xxxxxx X0X 0XX as its agent for service of
process in relation to any proceedings before the English
courts in connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the Borrower
of the process will not invalidate the proceedings concerned.
This Agreement has been entered into in London on the date stated at the
beginning of this Agreement.
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SCHEDULE 1
THE ORIGINAL LENDERS
Name of Original Lender Commitment (EUR)
BANCA CRT S.p.A. 150,000,000
BANCA DI ROMA S.p.A. 600,000,000
INTESABCI S.p.A. 600,000,000
ROLO BANCA 1473 S.p.A. 250,000,000
UNICREDIT BANCA MOBILIARE S.p.A. 200,000,000
TOTAL COMMITMENTS 1,800,000,000
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SCHEDULE 2
CONDITIONS PRECEDENT
Conditions precedent to initial Utilisation
1. Borrower
(a) A certified copy of the constitutional documents of the
Borrower (in the Italian language).
(b) A copy of a resolution of the board of directors of the
Borrower (in the Italian language):
(i) 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;
(ii) authorising a specified person or persons to execute
the Finance Documents to which it is a party on its
behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and
notices (including, if relevant, any Utilisation
Request) to be signed and/or despatched by it under
or in connection with the Finance Documents to which
it is a party. (c) A specimen of the signature of
each person authorised by the resolution referred to
in paragraph (b) above.
(d) A certificate of the Borrower (signed by a director)
confirming that borrowing the Total Commitments would not
cause any borrowing or similar limit binding on the Borrower
to be exceeded.
(e) A certificate of the Borrower signed by an authorised
signatory certifying that each copy document relating to it
specified in this Schedule 2 is correct, complete and in full
force and effect as at a date no earlier than the date of this
Agreement.
(f) A certified copy of any agreement between the Original
Shareholders relating to the management of the Borrower.
(g) A certified copy of the Acquisition Document referred to in
paragraph (a) (i) of the definition of
<>.
2. Legal opinions
(a) A legal opinion of Xxxxxxxx Xxxxxxxx Chance, Milan, legal
advisers to the Mandated Lead Arrangers and the Facility Agent
with respect to the laws of England, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
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(b) A legal opinion of Xxxxxxxx Xxxxxxxx Chance, Milan, legal
advisers to the Mandated Lead Arrangers and the Facility Agent
with respect to the laws of Italy, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(c) A legal opinion of Avv. Xxxxxx Xxxxxxxxx, in-house counsel to
the Borrower and Pirelli with respect to the laws of Italy,
substantially in the agreed form.
3. Security Documents and Finance Documents
(a) An executed copy of the Security Document referred to in the
paragraph (a) of the definition thereof together with any
evidence and documentation relating to the perfection of such
to the Security constituted thereby.
(b) An executed original of the Syndication Letter.
(c) An executed original of the Hedging Policy Letter.
4. Other documents and evidence
(a) The disclosure letter with respect to the Junior Loan
Agreements [in an agreed form]
(b) Evidence that any process agent referred to in Clause 35.2
(Service of process) has accepted its appointment.
(c) Evidence that the fees, costs and expenses then due from the
Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and
expenses) have been paid or will be paid by the first
Utilisation Date.
(d) Evidence that the proceeds of the first Loan to be made
hereunder will be applied to pay all amounts outstanding under
the Bridge Facility in full.
(e) [Letter from Credito Italiano S.p.A. confirming receipt by the
Borrower of a cash equity injection of EUR 5.2 billion.]
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SCHEDULE 3
REQUESTS
Utilisation Request
From: Olimpia S.p.A.
To: Banca di Roma S.p.A.
Dated:
Dear Sirs
Olimpia S.p.A. - EUR 1,800,000,000 Facility Agreement
dated 30 October 2001 (the "Facility Agreement")
1. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business Day, the
next Business Day)
Amount (new utilisation): [ ] or, if less, the Available Facility
Amount (roll over): [ ] or, if less, the Available Facility
Total Amount of Loans: [ ] or, if less, the Available Facility
Interest Period: [ ]
2. The purpose to which this Utilisation Request relates is [specify]./[The
number of [Shares in Olivetti] [and] [Convertible Bonds] to be [purchased]
[subscribed] with the proceeds of this Loan is [ ].x
3. [We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request].We confirm
that each relevant condition specified in Clause 4.3 (Further conditions
precedent applicable to Purchases) is satisfied on the date of this
Utilisation Request. Xx
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
Olimpia S.p.A.
x: in the case of drawings under Clause 4.3.
xx delete as necessary
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SCHEDULE 4
FORM OF TRANSFER CERTIFICATES
(TO BE EXECUTED OUTSIDE OF ITALY OR BY EXCHANGE OF CORRESPONDENCE)
To: Banca di Roma S.p.A. as Facility Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the
"New Lender")
Dated:
Olimpia S.p.A. - EUR 1,800,000,000 Facility Agreement
dated 30 October 2001 (the "Facility Agreement")
1. We refer to Clause 21.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 21.5 (Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 28.2 (Addresses)
are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 21.4 (Limitation of
responsibility of Existing Lenders).
3. This Transfer Certificate is governed by English law.
4. The New Lender confirms to the Borrower that it is [an Italian]/[a
Gross-Up] Lender.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the
Transfer Date is confirmed as [ ].
[Facility Agent]
By:
[Note: execution and delivery of Transfer Certificate may not
be sufficient to transfer security]
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TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "Transfer Certificate") to which they are
annexed.
1. Interpretation
In these Terms and Conditions words and expressions shall (unless
otherwise expressly defined herein) bear the meaning given to them in
the Transfer Certificate, the Credit Agreement or the Sale Agreement.
2. Transfer
The Bank requests the Transferee to accept and procure the transfer by
novation of all or a part (as applicable) of such participation of the
Bank under the Credit Agreement as is set out in the relevant part of
the Transfer Certificate under the heading "Participation Transferred"
(the "Purchased Assets") by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of notice
specified in the Credit Agreement. On the Transfer Date the Transferee
shall pay to the Bank the Settlement Amount as specified in the pricing
letter between the Bank and the Transferee dated the date of the
Transfer Certificate (adjusted, if applicable, in accordance with the
Sale Agreement) and completion of the transfer will take place.
3. Effectiveness of Transfer
The Transferee hereby requests the Agent to accept the Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of the Credit Agreement so as to take effect in accordance
with the terms of the Credit Agreement on the Transfer Date or on such
later date as may be determined in accordance with the terms thereof.
4. Transferee's Undertaking
The Transferee hereby undertakes with the Agent and the Bank and each
of the other parties to the Credit Documentation that it will perform
in accordance with its terms all those obligations which by the terms
thereof will be assumed by it after delivery of the Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which the Transfer Certificate is to take effect.
5. Payments
5.1 Place
All payments by either party to the other under the Transfer
Certificate shall be made to the Receiving Account of that other party.
Each party may designate a different account as its Receiving Account
for payment by giving the other not less than five Business Days notice
before the due date for payment.
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5.2 Funds
Payments under the Transfer Certificate shall be made in the currency
in which the amount is denominated for value on the due date at such
times and in such funds as are customary at the time for settlement of
transactions in that currency.
6. The Agent
The Agent shall not be required to concern itself with the Sale
Agreement and may rely on the Transfer Certificate without taking
account of the provisions of such agreement.
7. Assignment of Rights
The Transfer Certificate shall be binding upon and enure to the benefit
of each party and its successors and permitted assigns provided that
neither party may assign or transfer its rights thereunder without the
prior written consent of the other party.
8. Governing Law and Jurisdiction
The Transfer Certificate (including, without limitation, these Terms
and Conditions) shall be governed by and construed in accordance with
the laws of England, and the parties submit to the non-exclusive
jurisdiction of the English courts.
Each party irrevocably appoints the person described as process agent
(if any) specified in the Sale Agreement to receive on its behalf
service of any action, suit or other proceedings in connection with the
Transfer Certificate. If any person appointed as process agent ceases
to act for any reason the appointing party shall notify the other party
and shall promptly appoint another person incorporated within England
and Wales to act as its process agent.
-72-
SCHEDULE 5
COLLATERAL RELEASE CERTIFICATE
From: Olimpia S.p.A
To: Banca di Roma S.p.A., as Facility Agent and the Collateral Monitoring
Agent
[Date]
Dear Sirs,
Request for Collateral Release
1. We refer to the revolving credit facility agreement (the "Facility
Agreement") dated 30 October 2001 whereby a EUR1.8 billion 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:
i) The Optional Cancellation has occurred, as evidenced by the
irrevocable notice of cancellation a copy of which is attached
hereto; and
ii) the Collateral Ratio as at the Calculation Date immediately
preceding the date hereof is [greater than 2.00:1.00]; and
iii) no Default has occurred and is continuing;
iv) all Repeating Representations are true in all material respects on
and as of the date hereof, by reference to the facts and
circumstances subsisting as at the date hereof.
3. We hereby request that an amount equal to [ ] shares in Olivetti be
released from the pledge agreement entered into by us on [ ], such that the
Collateral Ratio following such release shall be 2.00:1.00.
4. We hereby acknowledge and agree that this Guarantee 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.
-73-
SIGNATURES
THE BORROWER
OLIMPIA S.p.A.
By:
Address:
Fax:
THE MANDATED LEAD ARRANGERS
INTESABCI S.p.A.
By:
Address:
Fax:
UNICREDIT BANCA MOBILIARE S.p.A.
By:
Address:
Fax:
THE FACILITY AGENT
BANCA DI ROMA S.p.A.
By:
Address:
Fax:
Attention:
-74-
THE SECURITY AGENT
BANCA DI ROMA S.p.A.
By:
Address:
Fax:
Attention:
THE COLLATERAL MONITORING AGENT
BANCA DI ROMA S.p.A.
By:
Address:
Fax:
Attention:
THE LENDERS
BANCA CRT S.p.A.
By:
Address:
Fax:
Attention:
BANCA DI ROMA S.p.A.
By:
Address:
Fax:
Attention:
-75-
INTESABCI S.p.A.
By:
Address:
Fax:
Attention:
UNICREDITO ITALIANOROLO BANCA 1473 S.p.A.
By:
Address:
Fax:
Attention:
UNICREDIT BANCA MOBILIARE S.p.A.
By:
Address:
Fax:
Attention:
-76-