EXHIBIT 74
PLEDGE DOCUMENT FOR XXXXXXXXXXXXXX SHARES
JANUARY 20, 2005
STIPULATED BETWEEN
OLIMPIA S.P.A.
(the Constituent)
and
BANCA DI ROMA S.P.A.
(the Agent)
and
THE FINANCING BANKS
(the Original Lenders)
and
BANCA DI ROMA S.P.A.
(the Depositary Bank)
TABLE OF CONTENTS
ARTICLES PAGE
1. Interpretation.......................................................6
2. Guarantee............................................................9
3. Obligations Guaranteed...............................................11
4. Fulfillment of the Pledge............................................11
5. Voting Rights and Related Rights.....................................11
6. Rights Related to Warrants and Convertible Bonds.....................12
7. Settlement of the Pledge.............................................13
8. Representations and Guarantees Warranties............................14
9. Undertakings of the Constituent......................................15
10. Extinction and Cancellation of the Pledge...........................16
11. Indemnity, Taxes, Costs, and Expenses...............................17
12. Communications......................................................18
13. Miscellaneous Stipulations..........................................19
14. Regulatory Laws and Legal Jurisdiction..............................21
SIGNERS OF THE DOCUMENT.....................................22
ADDENDA
Description of the Loan.................................................25
Text of the Annotations in the Book of Shareholders of the Company......27
DOCUMENT SUMMARIZING THE PRINCIPAL CONTRACTUAL CONDITIONS OF THE
PLEDGE DOCUMENT ON SHARES DATED JANUARY 20, 2005
This summary document, written in accordance with Article 9.1 of the CICR
Decision of March 4, 2003, and subsequent Oversight Instructions of the Bank of
Italy, does not in any way replace the contents of the Pledge Document on Shares
dated January 20, 2005 (hereinafter referred to as the PLEDGE DOCUMENT).
The terms beginning capital letters in this summary document have the same
meaning attributed to them in the Pledge Document.
S E C T I O N 1
THE INFORMATION IN THIS SECTION CALLS TO THE ATTENTION OF THE
CONSTITUENT THE PRINCIPAL ECONOMIC CONDITIONS OF THE TRANSACTION.
FEES OR EXPENSES TO BE PAID BY THE CONSTITUENT: the Constituent is responsible
for the following fees or expenses: (i) the costs deriving from the fulfillment
of the pledges discussed in Article 9 (Pledges of the Constituent) of the Pledge
Document; (ii) the costs and expenses deriving from the extinction and
cancellation of the pledge in accordance with Article 10 (Extinction and
Cancellation of the Pledge); and (iii) the taxes, costs, expenses, and indemnity
discussed in Article 11 (Indemnity, Taxes, Costs, and Expenses) of the Pledge
Document.
S E C T I O N 2
THE INFORMATION IN THIS SECTION CALLS TO THE ATTENTION OF THE
CONSTITUENT THE CLAUSES CONTAINED IN THE PLEDGE DOCUMENT, EVEN THOSE
THAT ARE NOT SPECIFICALLY ECONOMIC.
ARTICLE 1 - This article identifies and interprets the terms used in the Pledge
Document.
ARTICLE 2 - This article establishes that the Constituent irrevocably
constitutes a first degree pledge in favour of the Guaranteed Credit in respect
to the Object of the Pledge. In addition: (i) it establishes that the Pledge
shall automatically be extended from time to time to all the future shares
issued and assigned by the Company to the Constituent for free increases in the
capital of the Company, and to the rights related to them that the Constituent
might hold from time to time in the Company; (ii) the article also establishes
that if certain conditions discussed in the Loan Contract should take place, the
Constituent may constitute or shall have the obligation of constituting
additional Collateral as a Pledge to the Guaranteed Creditor; and (iii) the
article also establishes the method of fulfillment of the Pledge on the newly
issued shares and/or on the additional Collateral.
ARTICLE 3 - This article establishes that the Object of the Pledge is
constituted as a first degree Pledge issued in favour of the Guaranteed Creditor
as a guarantee for the Guaranteed Obligations.
ARTICLE 4 - This article establishes the method of fulfillment of the Pledge. In
particular, the Constituent hereby agrees to ensure that the Depositary Bank,
who also agrees in this sense, in respect to the Company, and the Constituent
perform all the acts necessary to fulfill the pledge according to the terms
established in the Pledge Document. This article also establishes that (i) the
constitution of the Pledge will be duly noted in the Book of Shareholders of the
Company using the formula presented in Addendum 2, Part 1 to the Pledge
Document; and that (ii) the Depositary Bank must issue, on the request of those
having voting rights - the certificates necessary to exercise the respective
rights related to the Shares.
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ARTICLE 5 - This article establishes that: (i) until the communication on the
part of the Agent of the occurrence of a Significant Event, (A) the voting
rights and the administrative rights associated with the Shares shall remain
with the Constituent, who must exercise them in accordance with the terms
indicated therein; and (B) the Constituent shall have the right to receive all
the Dividends; (ii) when the Significant Event shall occur, the Guaranteed
Creditor, acting through the Agent, shall have the right to exercise the voting
rights and the administrative rights associated with the Shares both in the
ordinary assembly and in the Extraordinary Assembly of Shareholders of the
Company and to receive all the Dividends; and (iii) the Constituent shall waive
the right to contest the fact or to take any action regarding the legitimate
right of the Agent to exercise the rights discussed in point (ii) above.
ARTICLE 6 - This article establishes the regulations that will be applied in the
event that the Constituent must or has the intention of constitute a pledge of
Warrants or Convertible Bonds in favour of the Guaranteed Creditor.
ARTICLE 7 - This article establishes the terms of settlement of the Pledge.
ARTICLE 8 - The Constituent makes several declarations and guarantees in favour
of the Guaranteed Creditor.
ARTICLE 9 - This article establishes the undertakings that the Constituent must
fulfill.
ARTICLE 10 - This article establishes the method of extinction and cancellation
of the Pledge. In particular, it establishes that the Pledge will be released by
the Guaranteed Creditor at the expiration of the Guaranteed Period upon request
and with all expenses paid by the Constituent. In addition, the article
establishes that in the event of the complete and unconditioned fulfillment of
the Guaranteed Obligations, upon written request of the Constituent for the full
release of the Pledge, the Guaranteed Creditor will consent, through the Agent,
to the full release of the Pledge before the expiration of the Guaranteed
Period, on the condition that the Company has handed over to the Agent, and the
form and contents are considered satisfactory by the Agent, all the
documentation indicated therein. Finally, the article establishes the method of
partial release of the Pledge.
ARTICLE 11 - This article defines: (i) the responsibility of the Guaranteed
Creditor, the Agent, and the Depositary Bank, who will not be responsible,
except in the event that they have acted with wiilful misconduct or gross
negligence, for damages caused to the Company or to the Constituent as a result
of the exercise or the failure to exercise the rights, actions, or measures
which they have the right to exercise in accordance with the Pledge Document;
(ii) the taxes, duties, expenses, and costs shall be paid exclusively by the
Constituent; and (iii) the indemnity that the Constituent is held to pay to the
Agent, the Guaranteed Creditor, and the Depositary Bank.
ARTICLE 12 - This article establishes: (i) the manner in which communications
shall be made in accordance with the Pledge Document; (ii) the addresses to
which these communications must be sent; (iii) the measures to be taken in the
event of a change of address on the part of one of the parties; and (iv) the
selection of legal domicile on the part of the Constituent.
ARTICLE 13 - This article establishes various measures, and in particular (i) it
indicates the manner in which the Guaranteed Creditor may exercise or waive its
rights deriving from the Pledge Document; (ii) it defines the manner in which
the parties to the Pledge Document may modify the terms of the document or waive
the rights arising from this document; (iii) it establishes that the right of
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guarantee constituted through the Pledge Document is added to and shall not
affect the other guarantee rights which the Guaranteed Creditor may hold now or
shall hold in reference to the Guaranteed Bonds; (iv) it establishes that: (A)
the Pledge Document shall be binding for the Constituent, his successors,
transferees, or those exercising rights thereto even in the event of a Sale,
and, in this regard, the Parties to the Pledge Document expressly agree in
accordance with Article 1232 of the civil code, on the continuation of the
Pledge in the event of a Sale; (B) the Constituent hereby agrees to confirm in
writing, if requested by the Agent, to give his own consent to the continuation
of the Pledge; (C) this article also establishes the formalities which the
Constituent and the Company must fulfill in of a Sale deed; and (D) all the
taxes, duties, expenses, costs, and withholdings, or similar fees which are due
or which might become due in relation to each Sale, will be incurred in
accordance with the terms of the Loan Contract; (v) the article establishes that
the rights, the actions, and the measures established by the Pledge document in
favour of the Guaranteed Creditor shall be added to and shall not exclude any
additional rights, actions, or measures of which the Guaranteed Creditor is the
holder on the basis of the contract or in accordance with law; (vi) the
Constituent hereby agrees to act in such a way that within 5 (five) business
days from the stipulation of the Pledge Document, the Company should be aware of
and accept the Pledge in the terms established therein; and (vii) the article
establishes that in the event that one or more stipulations of the Pledge
Document should be or should be invalid, ineffective, or not actionable, this
will not affect the validity, effectiveness and actionability of the other
stipulations of the Pledge Document.
ARTICLE 14 - It is hereby established that Italian law shall regulate the Pledge
Document and that the Court of Milan shall have exclusive legal jurisdiction
over any dispute arising in relation to the Pledge Document, notwithstanding the
right of the Guaranteed Creditor to bring legal suit against the Constituent
before any competent legal authorities.
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THIS PLEDGE DOCUMENT was stipulated in London, on January 20, 2005,
among the following parties:
(1) OLIMPIA S.P.A., a company operating under Italian law and with legal
offices in Milan, Viale Sarca no. 222, Tax Identification number and
Registration number in the Book of Companies in Milan 03232190961,
corporate capital 2,630,233,510 Euro entirely paid (the CONSTITUENT);
(2) BANCA DI ROMA S.P.A., a company operating under Italian law, with legal
offices in Rome, Xxxxx Xxxxxxx Xxxxxx no. 180, corporate capital
2,060,000,000 Euro, entirely paid, Tax Identification number and
Registration number in the Book of Companies in Rome: 06978161005, in the
role of facility agent (the AGENT);
(3) BANCA INTESA S.P.A., a company operating under Italian law, with legal
offices in Milan, Xxxxxx Xxxxx Xxxxxxx xx. 10, corporate capital
3,561,062,849.24 Euro, entirely paid, Tax Identification number and
Registration number in the Book of Companies in Milan: 00799960158;
(4) BANCA DI ROMA S.P.A., a company operating under Italian law, with legal
offices in Rome, Xxxxx Xxxxxxx Xxxxxx no. 180, corporate capital
2,060,000,000 Euro, entirely paid, Tax Identification number and
Registration number in the Book of Companies in Rome: 06978161005;
(5) BIPOP CARIRE S.P.A., a company operating under Italian law, with legal
offices in Brescia, on Via Xxxxxxxx xx Xxxxx no. 74, corporate capital
855,250,000 Euro entirely paid, Tax Identification number and Registration
number in the Book of Companies in Brescia: 03336830967;
(6) BANCO DI SICILIA S.P.A., a company operating under Italian law, with legal
offices in Palermo, on Via Generale Xxxxxxxxx no. 1, corporate capital
1,432,338,781.05 entirely paid, Tax Identification number and Registration
number in the Book of Companies in Palermo: 05102070827;
(7) IRFIS MEDIOCREDITO XXXXX XXXXXXX S.P.A., a company operating under Italian
law, with legal offices in Palermo, on Xxxxxxxx Xxxxxxx n. 47, corporate
capital 70,244,000 Euro entirely paid, Tax Identification number and
Registration number in the Book of Companies in Palermo: 00257940825;
(8) MCC S.P.A., a company operating under Italian law, with legal offices in
Rome, on Via Piemonte no. 51, corporate capital 475,138,635 Euro entirely
paid, Tax Identification number and Registration number in the Book of
Companies in Roma: 00594040586;
(9) UNICREDIT BANCA D'IMPRESA S.P.A., a company operating under Italian law,
with legal offices in Verona, on Via Garibaldi no. 1, Corporate Capital
3,671,300,000 Euro entirely paid, Tax Identification number and
Registration number in the Book of Companies in Verona: 03656170960;
(10) CALYON S.A., MILAN OFFICE, a company operating under French law, with the
secondary office in Milan, on Xxx Xxxxx xx. 21 and legal offices on 9, Quai
du President Xxxx Xxxxxx, 92920 Paris, La Defense Cedex, Corporate Capital
3,119,771,484 Euro, entirely paid, Tax Identification number and
Registration number in the Book of Companies in Milan: 11622280151;
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(11) XXXXXX XXXXXXX BANK INTERNATIONAL LIMITED, MILAN OFFICE, a company
operating under British and Gallician law, and with a secondary office in
Milan, on Corso Venezia no. 16 and legal offices in London, in Cabot Square
no. 00, Xxxxxx Xxxxx, Xxxxxx X00 0XX, Corporate Capital 380,000 British
Pounds entirely paid, Tax Identification number and Registration number in
the Book of Companies in London: 3722571;
(12) XXXXXX XXXXXXX EUROPEAN FUNDING, INC., a corporation founded in accordance
with the laws of the State of Delaware (United States of America), with
legal offices in Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxx xx Xxx Xxxxxx, Xxxxx xx Xxxxxxxx (Xxxxxx Xxxxxx of America),
corporate capital 1000 U.S. Dollars entirely paid, State Filing Number:
3731121;
(13) SOCIETE GENERALE, MILAN OFFICE, an anonymous corporation operating under
French law, with legal offices in Paris, Boulevard Haussmann n. 29 and
office for Italy in Milan, Xxx Xxxxx xx. 2, corporate capital
556,441,448.75 Euro entirely paid, Tax Identification number and
Registration number in the Book of Companies in Milan: 80112150158; (the
banks and financial institutions listed from (3) to (13) including those
indicated collectively as the ORIGINAL Lenders. The Original Lenders and
the Agent are indicated hereinafter as the GUARANTEED CREDITOR); and
(14) BANCA DI ROMA S.P.A., a company operating under Italian law, with legal
offices in Rome, Xxxxx Xxxxxxx Xxxxxx xx. 180, corporate capital
2,060,000,000 Euro entirely paid, Tax Identification number and
Registration number in the Book of Companies in Rome: 06978161005 (the
DEPOSITARY BANK).
IT IS ESTABLISHED THAT:
(A) through a loan contract (the LOAN CONTRACT) stipulated on January 12, 2005
among Banca di Roma S.p.A., Banca Intesa S.p.A., MCC S.p.A., UniCredit
Banca Mobiliare S.p.A., Calyon S.A., Milan Office, Xxxxxx Xxxxxxx Bank
International Limited, Milan Office, Societe Generale, Milan Office in the
role of Mandated Lead Arrangers, the Agent, the Original Lenders and the
Constituent, the Original Lenders have agreed to issue the Constituent a
loan for the total amount of 2,400,000,000 Euro (the LOAN) in the terms
discussed in the Loan Contract. The Loan is described in more details in
Addendum 1;
(B) the Constituent is the bearer of a total of 920,892,723 ordinary shares of
stock in the Company (as defined below) with a nominal value of 0.55 Euro
each, representing 8.9% of the corporate capital of the Company represented
by ordinary voting shares (the SHARES);
(C) The shares are part of the management system of dematerialization, in
accordance with Article 28 et sig. of Legislative Decree no. 213 of June
24, 1998, as expanded and modified from time to time (the EURO DECREE);
(D) the Depositary Bank, in the role of depositary bank and agent authorized in
accordance with Legislative Decree no. 58 of February 24, 1998, as expanded
and modified from time to time (the TUF), is the depositary bank for a
special account held by the Constituent, destined, inter alia, for the
recording of the restrictions on the shares held by the Constituent
himself, in accordance with and as a result of Article 34 of the Euro
Decree;
(E) On the date of the signing of this Document, the Shares were deposited at
the Depositary Bank and constituted as a first degree pledge (the ORIGINAL
PLEDGE) in favour of IntesaBci S.p.A. (now Banca Intesa S.p.A.), UniCredit
Banca Mobiliare S.p.A., Banca di Roma S.p.A., Banca Cassa di Risparmio di
Torino S.p.A., Rolo Banca 1473 S.p.A. and their successors, transferees,
and those exercising rights, in accordance with the Pledge Document signed
on October 30, 2001, by the Constituent and the aforementioned financial
5
institutions, as subsequently expanded and modified on October 15, 2003,
and March 25, 2003 (The ORIGINAL PLEDGE DOCUMENT), as a guarantee for the
loan issued by IntesaBci S.p.A. (now Banca Intesa S.p.A.), UniCredit Banca
Mobiliare S.p.A. and the other institutions indicated in Addendum 1, and
their successors, transferees, or those exercising rights (collectively,
the ORIGINAL BANKS) to the Constituent on October 30, 2001, for a total
amount of 1,800,000,000 Euro (the ORIGINAL LOAN);
(F) through the Loan, the Company intends, inter alia, to fulfill its own
obligations deriving from the Original Loan and to obtain the cancellation
of the Original Pledge related to the Shares;
(G) as a condition for the issuance of the Loan, the Constituent has agreed,
inter alia, to constitute a first degree pledge on the Shares in favour of
the Guaranteed Creditor in order to guarantee the obligations of the
Constituent deriving from the Loan Contract;
(H) on the date hereof, the Original Banks have signed a document of released
of the Original Pledge, since it has been agreed that the recording
necessary for the release will be performed by the Depositary Bank after
the full repayment of the Original Loan; and
(I) the Depositary Bank, simultaneous to the fulfillment of the regulations for
the release of the Original Pledge as discussed in Introductory Section
(H), will perform all the actions necessary for the fulfillment of the
Pledge (as defined below), constituted in accordance with the terms of this
Document.
ALL THIS HAVING BEEN ESTABLISHED, the parties hereby agree and
stipulate as follows:
1. INTERPRETATION
The introductory points and the addenda form an integral and
substantial part of this Document.
1.1 DEFINITIONS
In this document:
The term AGENT has the meaning attributed to the term Facility Agent
in the Loan Contract, and every reference to the Agent in this
Document should be understood as referring to the Agent that acts on
behalf of the Guaranteed Creditor in accordance with the Loan
Contract.
The term SHARES has the meaning attributed in Introduction Section B.
The term CAUSE OF SETTLEMENT indicates:
(a) the occurrence of a Significant Event as discussed in Article 19
(Events of Default) of the Loan Contract, as a result of which the
Agent may send the Constituent a notice in accordance with Article
19.12 (Acceleration) of the Loan Contract;
(b) the occurrence of any event (including, solely for the purposes of
example, but not limited to, a Significant Event specified in Articles
19.6 (Insolvency), with the exception of those indicated under points
(a) and (d), or 19.7 (Insolvency proceedings), with the exception of
those indicated under points (a)(i), (a)(ii), (a)(vi), only in the
6
event that the notice mentioned therein is not provided in writing,
and (a)(vii) only for the last ones referred to, in the Loan Contract
which causes the ex lege nullification of the Guaranteed Obligation;
or
(c) the failure to make payment on the part of the Constituent of the
Guaranteed Obligations described in sub-section (d) of the Definition
of "Guaranteed Obligations" of this Document within 5 (five) Business
Days from the request for payment on the part of the Agent.
The term TRANSFER indicates any modification, complete or partial transfer of
the Loan Contract and this Document, or any modification, transfer, or novation
of the Guaranteed Obligations, including solely for the purposes of example but
not limited to every transfer on the basis of a novation of British law or any
transfer through a Transfer Certificate in accordance with the Loan Contract.
The term RESTRICTIONS ACCOUNT indicates stock account no. 888202 opened by the
Constituent at the Depositary Bank.
The term LOAN CONTRACT has the meaning attributed in Introduction Section A.
The term EURO DECREE has the meaning attributed in Introduction Section C..
The term GUARANTEE DECREE indicates Legislative Decree no. 170 of May 21, 2004,
as expanded and modified from time to time.
The term CONSOB DECISION indicates Consob Decision no. 11768 of December 23,
1998, as expanded and modified from time to time .
The term ASSOCIATED RIGHTS indicates:
(a) every Dividend;
(b) every option right relating to the Shares or the Associated Asset Values;
(c) every share or other asset value or rights attributed or which may be
attributed to the Constituent in exchange for or in relation to any
Associated Asset Value; and
(d) any other proceeds deriving from the entries listed under letters (a), (b)
and (c) of this section.
The term DIVIDENDS indicates:
(a) every dividend and account on dividends paid or payable in relation to the
Shares and participation in the company and the goods constituted as a
pledge in accordance with this Document after the date of the stipulation
of this Document;
(b) any other distribution (in money or in kind), interest, or other sum paid
or payable in relation to the Shares (including, solely for the purposes of
an example, any amount paid or payable as a result of the distribution of
reserves, called whatever they may be, or the repayment on the part of the
Company of the contributions of shareholders or the liquidation of the
Company);
(c) any dividend, distribution, or other sum p paid or payable in relation to
the Associated Asset Values.
7
The term FINANCE DOCUMENTS has the meaning attributed to the term Finance
Documents in the Loan Contract.
SIGNIFICANT EVENT has the meaning attributed to the term Event of Default in the
Loan Contract.
The term LOAN has the meaning attributed in Introduction Section A.
The term ORIGINAL LOAN has the meaning attributed in Introduction Section E.
The term BUSINESS DAY indicates the day, other than a Saturday or a Sunday, on
which the banks are open to the public in London and Milan.
The term BANKRUPTCY LAW indicates Royal Decree no. 267 of March 16, 1942, as
expanded and modified from time to time.
The term GUARANTEED OBLIGATIONS indicates:
(a) all the pecuniary obligations of the Constituent in relation to the Loan,
including, in particular, the obligations relating to the correct execution
of the payment obligations in relation to the capital, interest, late
charges, costs, expenses, compensation, indemnity, commissions, fees, or
other financial obligations, any amount due as a result of the repayment or
advanced reimbursement of the partial or full amount of the Loan on a date
other than the date contractually established (the Break Costs) and all the
other costs, expenses, or other financial obligations or fees (even legal
fees) due in relation to the protection or fulfillment of the rights of the
Guaranteed Creditor of the rights and measures established by the Loan
Contract;
(b) all the pecuniary obligations of the Constituent deriving from the
invalidity or ineffectiveness of the obligations as discussed in section
(a), such as, solely for the purposes of example but not limited to, those
in accordance with article 2033 or article 2041 of the civil code;
(c) all the pecuniary obligations of the Constituent in the hypothetical
situation of revocation or non-effectiveness in accordance with Article 65
or Article 67 of the Bankruptcy Law (or any other similar legislation
according to the applicable law) of every payment made by the Constituent
or by a third party to fulfill the obligations discussed in sections (a)
and (b); in addition to
(d) all the pecuniary obligations of the Constituent in accordance with this
Document.
The term OBJECT OF THE PLEDGE indicates, collectively, the Shares and the
Associated Rights .
The term PLEDGE indicates the pledge on the Object of the Pledge created through
this Document, notwithstanding the fact that the term "Pledge" should also
include any further pledge right that is constituted in accordance with this
document.
The term ORIGINAL PLEDGE has the meaning attributed in Introduction Section E.
The term GUARANTEED PERIOD indicates the period that begins from the date of
this Document and concludes with the first anniversary or any other term
determined from time to time by law (or, in the case of the applicability of
Article 65 or Article 67, section one, of the Bankruptcy Law, the second
anniversary or any other term determined from time to time by law) of the
complete and unconditional fulfillment of the Guaranteed Obligations;
notwithstanding the fact that in the meantime the Constituent or any other party
8
that has made payments on behalf of the Constituent is placed in bankruptcy
procedure that causes the application of Article 67 of the Bankruptcy Law (or
any other similar legislation according to the applicable law), this term will
be extended until no revocation action may be exercised.
The term REGULATION OF THE ISSUERS indicates Consob decision no. 11971 of May
28, 1999, as expanded and modified from time to time.
The term REFORM OF COMPANY LAW indicates Legislative Decree no. 6 of January 17,
2003 on the reform of the rules governing capital corporations and cooperation,
through the enactment of law no. 366 of October 3, 2001 (Organic reform of the
governance of capital companies and cooperative companies, through the enactment
of law no. 366 of October 3, 2001), as modified and expanded from time to time.
The term COMPANY indicates TELECOM ITALIA S.p.A., a company operating under
Italian law, with legal offices in Piazza Affari no. 2, Milan, Tax
Identification Number and Registration Number in the Book of Companies in Milan
00488410010, corporate capital 8,864,857,175.90 Euro, entirely paid.
The term TAXES has the meaning attributed to the term Tax in the Loan Contract.
The term TUF has the meaning attributed in Introduction Section D.
The term ASSOCIATED ASSET VALUES indicates any share or other asset value,
right, or proceed which is attributed or which may be attributed at any time to
the Constituent in exchange for or in relation to the Shares (including, solely
for the purposes of example, but not limited to, shares as a result of a merger,
demerger, or transformation of the Company).
1.2 INTERPRETATION
(a) The stipulations introduced in Article 1.2 of the Loan Contract are to be
applied, mutatis mutandis, to this Document.
(b) The terms defined (in English) in the Loan Contract have the same meaning
when they are used in this Document, unless they are established otherwise
in this Document.
2. GUARANTEE
2.1 PLEDGE
The Constituent constitutes the Object of the Pledge as a first degree Pledge in
favour of the Guaranteed Creditor.
2.2 FUTURE SHARES AND ASSOCIATED RIGHTS
The Pledge shall be automatically extended from time to time to all
future shares issued and assigned by the Company to the Constituent for
free increases in corporate capital and to the rights associated with
them that the Constituent may hold from time to time in the Company.
2.3 ADDITIONAL GUARANTEES
In the event of the occurrence of the conditions defined in Articles
4.2(b), 7.4, and 7.9 of the Loan Contract, in accordance with and to
the effect of the points established therein, the Constituent may and
shall have the obligation of constituting further Collateral as a
pledge in favor of the Guaranteed Creditor if the need should arise.
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2.4 FORMALITIES RELATED TO FUTURE SHARES AND ADDITIONAL GUARANTEES
In the event that:
(a) the Company should issue new shares for a free increase in Corporate
Capital in accordance with the points established in section 2.2
above; or
(b) if the Constitution has constituted or has the intention of
constituting additional Collateral as a Pledge in accordance with the
terms of the Loan Contract,
The Constituent itself in relation:
(i) to the additional Collateral (with the exception of the Cash
Equivalent), must simultaneously sign and deliver to the
Guaranteed Creditor a Pledge Document bearing a certain date,
with content and form substantially identical to this Document;
and
(ii) in relation both to the newly issued shares established in
section 2.2 above and to additional Collateral (with the
exception of the Cash Equivalent) (collectively, the NEW
FINANCIAL INSTRUMENTS), the Constituent shall simultaneously:
(A) ensure that the Depositary Bank performs all the actions
necessary for the fulfillment of the Pledge on the New
Financial Instruments, and, in particular, that the
Depositary Bank agrees to record and in fact does record the
New Financial Instruments in the Restrictions Account held
in accordance with Article 34 of the Euro Decree, in
accordance with the points established in Article 45 of
Consob Decision, giving prompt notice to the Company in
accordance with and to the effects of Article 87 of the TUF;
and
(B) ensure that the Company, upon receiving the notice discussed
in section (A) above, does the following:
I. records the constitution of the Pledge on the New
Financial Instruments in the Book of Shareholders of
the Company and in other books held by the Company; and
II. promptly gives the Agent an authenticated copy of the
pages of the Book of Shareholders of the Company
proving that the annotation has, in fact, been made.
The annotation in the Book of Shareholders of the Company
discussed in section (b)(ii) (B) (I) above, relating to the newly
issued shares for the free increase of corporate capital, must be
done using the form presented in Addendum 2, Part 2 of this
document.
2.5 GOVERNANCE OF THE PLEDGES
The stipulations of this Document shall be applied to all the Pledges created in
accordance with Article 2 herein.
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3. GUARANTEED OBLIGATIONS
The Object of the Pledge is constituted as a first degree Pledge in
favor of the Guaranteed Creditor as a guarantee for the Guaranteed
Obligations.
4. FULFILLMENT OF THE PLEDGE
(a) The Constituent shall perform all the necessary actions to ensure the
following:
(i) simultaneously to the fulfillment of the formalities involved in the
release of the Original Pledge, the Depositary Bank will fulfill all
the formalities necessary for the fulfillment of the Pledge, and in
particular, it will record the Pledge, subjecting the Pledge to the
Shares in the Restriction Account, in accordance with Article 34 of
the Euro Decree, in accordance with the terms established by Article
45 of the Consob Decision, giving prompt notice to this effect, as
specified by Article 87 of the TUF;
(ii) the Company:
(A) upon receipt of the notice discussed in section (a)(i) above,
will record the constitution of the Pledge in the Book of
Shareholders of the Company; and
(B) within 5 (five) Business Days from the receipt of the notice
discussed in section (a)(i) above, will send the Agent an
authenticated copy of the pages in the Book of Shareholders of
the Company proving that the annotation has indeed been made.
(b) The annotation of the Book of Shareholders of the Company discussed in
section (a)(ii) above must be done by using the form attached in Addendum
2, Part 1 of the present Document.
(c) Until the release of the Pledge in accordance with Article 9 of this
Document, the Shares must remain recorded in the Restriction Account.
(d) In accordance with the terms established in the Euro Decree, the Depositary
Bank, upon request of those having voting rights as established in article
5 below, must release the certificates necessary for the exercising of all
rights related to the Shares.
5. VOTING RIGHTS AND RELATED RIGHTS
5.1 VOTING RIGHTS
(a) Until the communication on the part of the Agent as discussed in Article
5.3(a) below that a Significant Event has occurred, the voting rights and
the administrative rights related to the Shares, both in the General
Assembly and in the Extraordinary Assemblies of the Company, will remain
the property of the Constituent, notwithstanding the fact that in no case
may these rights be exercised by the Constituent in order to bring about
the following:
(i) to cause a Significant Event to take place; or
(ii) to prejudice the validity, the effectiveness or the enforceability of
the Pledge or the rights of the Agent or the Guaranteed Creditor in
relation to the Pledge and the Object of the Pledge.
11
5.2 ASSOCIATED RIGHTS
Until the communication on the part of the Agent as discussed in
Article 5.3(a) below that a Significant Event has occurred, the
Constituent shall have the right to receive Dividends.
5.3 THE OCCURRENCE OF A SIGNIFICANT EVENT
(a) When a Significant Event occurs, the Agent will send a notice to the
Constituent, the Depositary Bank and the Company, informing them that a
Significant Event has occurred, and, for the entire period in which the
Significant Event should remain in effect, in accordance with the Loan
Contract and up to the time in which the Guaranteed Creditor communicates
in writing to the Constituent, the Depositary Bank and the Company that the
Significant Event has ceased or it has been remedied, the Guaranteed
Creditor, through the Agent:
(i) will have the right (but not the obligation) in respect to the
obligation of informing the Company and Consob in accordance with the
TUF and any other applicable law, to exercise the voting rights and
the administrative rights relating to the Shares both in the Ordinary
and in the Extraordinary Assemblies of the Company; and
(ii) will receive all the Dividends. The Dividends received in this manner
from the Agent will attributed to satisfying the Guaranteed
Obligations due, or, in the event that there are no Guaranteed
Obligations due, they will be held by the Guaranteed Creditor as a
guarantee for the Guaranteed Obligations and attributed to their
satisfaction in case a Cause of Termination should occur. It is
understood that in case the Significant Event discussed in the above
section (a) has ceased or if it has been remedied, the Guaranteed
Creditor, through the Agent, must, within 5 (five) Business Days,
transfers the sums corresponding to the Dividends, held by the
Guaranteed Creditor, to the Constituent.
(b) The Constituent hereby authorizes the Depositary Bank to do whatever is
necessary to allow the Guaranteed Creditor to exercise the rights discussed
in section (a) above.
(c) The Constituent hereby waives the right to raise any objection or present
any case, defense, or opposition concerning the legitimacy of the right of
the Agent to exercise the rights discussed in section (a) above or the
method of exercising these rights on the part of the Agent. These types of
case, defense, or opposition:
(i) may be brought or put forward only in the event of wilful misconduct
or gross negligence on the part of the Agent, and, unless the notice
discussed in the previous section (a) has not been previously
renounced by the Agent, only for the purpose of compensation for
damages as a result of the wilful misconduct or gross negligence; and
(ii) this case, defense, or opposition will not have any effect on the
exercise of the voting rights and administrative rights, and the right
to Dividends, on the part of the Agent and the Guaranteed Creditor, as
discussed in the previous section (a).
6. RIGHTS RELATING TO THE WARRANTS AND THE CONVERTIBLE BONDS
6.1 PLEDGE ON WARRANTS AND CONVERTIBLE BONDS
In the event that the Constituent has constituted or has the intention of
constituting a pledge in favor of the Guaranteed Creditor, warrants or
convertible bonds of the Company as additional Collateral in accordance
with Articles 2.3 and 2.4 above, (the WARRANTS and the CONVERTIBLE BONDS),
the stipulations discussed in article 6.2 shall be applicable.
12
6.2 GOVERNANCE OF THE RIGHTS RELATING TO THE WARRANTS AND THE CONVERTIBLE
BONDS
(a) Notwithstanding the Pledge on the Warrants and on the Convertible Bonds,
the parties hereby agree that the Constituent should preserve the right to
exercise the Warrants and to convert the Convertible Bonds.
(b) The Constituent may ask the Agent to exercise the Warrants and/or to
convert the Convertible Bonds, in the name of and on behalf of the
Constituent, making a written request to the Agent at least 5 (five)
Business Days before the day on which the Agent is asked to exercise the
right, and in respect to the Warrants, paying the sum necessary for the
underwriting of the shares of the Company deriving from the exercising of
the Warrants.
(c) It is hereby understood that the shares of the Company that will be
underwritten as a result of the exercising of the Warrants and/or the
conversion of the Convertible Obligations shall be deposited in the
Restricted Account and are understood from this time on to be irrevocably
constituted as a first degree pledge in favour of the Guaranteed Creditor
as a guarantee for the Guaranteed Obligations.
(d) The Constituent shall ensure that the Depositary Bank completes all the
formalities necessary for the fulfillment of the Pledge in accordance with
Article 4 (Fulfillment of the Pledge) on the shares deriving from the
exercising of the Warrants and the conversion of the Convertible Bonds.
(e) The Constituent grants the Agent every power of representation necessary to
fulfill the obligations arising from this Article in relation to the
exercising of the warrants and the conversion of the Convertible Bonds in
the name of and on behalf of the Constituent, and will release the Agent
and the Creditor from the obligation to pay any tax, duty, cost, expense,
or honoraria (including legal fees) incurred in performing the actions
discussed in the previous Article.
7. SETTLEMENT OF THE PLEDGE
(a) In case of the occurrence of a Cause of Settlement and at any subsequent
time, the Guaranteed Creditor, notwithstanding any other right or action,
will have the right to the following:
(i) to sell the Object of the Pledge, or part of it, after 5 (five) days
have passed from the receipt on the part of the Company and the
Constituent of the notice sent by the Agent, in accordance with
Article 2797, section one, of the civil code, notwithstanding the
right discussed in Article 2798 of the civil code; or, at the
discretion of the Agent:
(ii) in accordance with Article 4 of the Guarantee Decree, also in the
event of the opening of a bankruptcy or liquidation procedure (as
defined respectively in the Guarantee Decree):
(A) to proceed with the appropriation of the Object of the Pledge
until the fulfillment of the Guaranteed Obligations. In this
regard, the parties to this Document hereby expressly agree that
as an evaluation criterion in accordance with Article 4.1.(b) of
the Guarantee Decree, the Object of the Pledge will be estimated
according to its average official price recorded in the 25
(twenty-five) days of open market prior to the date of receipt of
the notice discussed in Article 5.3 by the Constituent; or
13
(B) to sell the Object of the Pledge or part of it and to withhold
the sum as a satisfaction of the Guaranteed Obligations.
(b) In the cases discussed in section (a)(i) above, the Constituent and the
Guaranteed Creditor hereby agree that the respective sale of the Object of
the Pledge, notwithstanding the right discussed in Article 2797, section
two and four and Article 2798 of the civil code, may also be performed, in
whole or in part, in several installments, through auction or otherwise but
in any case it shall be done:
(i) through an authorized primary financial broker chosen by the Agent, or
another person authorized by the Agent; or, at the choice of the
Agent,
(ii) through a legal official.
(c) In the cases discussed in section (a)(ii) above, in accordance with Article
4.2 of the Guarantee Decree, the Guaranteed Creditor shall immediately
inform the Constituent in writing, or, if the case may be, the bankruptcy
or liquidation bodies, in terms of the method of settlement adopted and the
amount retrieved.
8. DECLARATIONS AND GUARANTEES
8.1 DECLARATIONS AND GUARANTEES OF THE CONSTITUENT
Notwithstanding the declarations and the guarantees discussed in the
Loan Contract and the other Financial Documents, the Constituent makes
the following declarations and guarantees to the Guaranteed Creditor:
(a) the Constituent is the sole legitimate owner of the Shares. With the
exception of the Pledge and the Original Pledge, the Object of the Pledge
is free from any restriction, lien, privilege, right, or option or any
other lien of a legal or contractual nature, in respect to third parties;
(b) the Shares have been validly issued, underwritten, and completely paid for
in accordance with the stipulations of current law;
(c) the Constituent has the full capacity, powers, and legitimacy to stipulate
this Document and to validly constitute the Pledge;
(d) the Pledge discussed in this Document, as a result of the execution of the
formalities discussed in Article 4, will constitute a first degree Pledge
as a guarantee for the Guaranteed Obligations, valid and effective for the
Constituent, the Company, and third parties;
(e) there are no legal actions or sentences, or cases under way or threats
issued in writing to the Constituent, pending in any legal jurisdiction, or
to the best of the knowledge of the Constituent, any case before
arbitration, in Italy or abroad, in relation to the Object of the Pledge;
(f) the creation, the constitution, and the fulfillment of the Pledge fall
under the corporate objective of the Constituent and the Constituent has
obtained all the authorizations, consents, licenses, and approvals
(corporate or any other type) necessary in relation to the constitution of
the Pledge;
14
(g) the creation, the constitution, and the fulfillment of the Pledge and the
stipulations of this Document are not in conflict with any other contract,
agreement or pledge in which the Constituent or the Company is a party, or
any law, regulation, or document that is binding for the Constituent or the
Company;
(h) on the date of the signing of this contract, the Shares represent 8,9% of
the corporate Capital of the company represented by ordinary voting shares
in any type of assembly of the Company in relation to any point of business
placed before the assembly for a decision;
(i) on the date of the signing of this Document, no procedure has been brought
by the Company, its administrators, or by the Constituent, to modify the
corporate capital of the Company, including, solely for the purposes of
example and not limited to the reduction of corporate capital; and
(j) The Company: it is a corporation validly founded and in existence in
accordance with Italian law; it is not subject to any bankruptcy procedure,
liquidation, or any similar procedure in Italy or abroad; it does not have
the intention of selling its goods to creditors in accordance with Article
1977 of the civil code, and it is not in the state of insolvency.
8.2 REITERATION OF THE DECLARATIONS AND GUARANTEES
All the declarations and guarantees of the Constituent in accordance with
Article 8.1, with the exception of those established in sections (h) and
(i), shall be considered to be reiterated by the Constituent on the date of
presentation of each Request and on the first day of each Term, in
reference to the facts and the circumstances in existence from time to
time, as if they were made at that time.
9. OBLIGATIONS OF THE CONSTITUENT
Notwithstanding the points established in Article 10(b), up to the
expiration of the Guaranteed Period, the Constituent hereby agrees to do
the following:
(a) to not undertake any actions (including solely for the purposes of example
and not limited to the exercise of voting rights and administrative rights
on the Shares) that may affect the validity, the effectiveness, and the
executability of the Pledge or the rights of the Agent and the Guaranteed
Creditor in relation to the Pledge and the Object of the Pledge;
(b) to undertake at its own expense any action necessary to guarantee the
validity, effectiveness, and executability of the Pledge and the rights of
the Agent and the Guaranteed Creditor, even solely for the purposes of
example and not limited to the any case brought by third parties;
(c) to promptly inform the Agent of any case brought by third parties in
relation to the Object of the Pledge that is to such an extent that it
might have a significant negative effect;
(d) to execute and promptly deliver all the documents at its own expense and to
perform all the actions in order to:
15
(i) fulfill the Pledge on the Object of the Pledge;
(ii) perform all the formalities established in accordance with Article 2
above; and
(iii) place the Agent and the Guaranteed Creditor in such a position that
they are able to exercise the rights and perform the actions to which
they have a right in accordance with this Document, including, without
any limitations, all the rights and the actions that may be exercised
in case a Significant Event or a Cause of Settlement should take
place;
(e) not to create or allow the creation of any obstacle, guarantee, or lien on
the Object of the Pledge;
(f) at its own expense, to promptly deliver to the Agent a copy of the
corporate by-laws of the Company, authenticated by a Notary, as modified
from time to time; and
(g) at its own expense, to promptly deliver to the Agent all the notices and
any other document received and relating to the Object of the Pledge or to
the rights of the Guaranteed Creditor on the basis of this document which
might have a substantial negative effect, including, solely for the
purposes of example and not limited to the any communication received by
and sent to the Company, any communication or document relating to legal
cases brought by third parties or threats sent in writing to the
Constituent and brought before any legal authority or arbitrator, in Italy
or abroad, in relation to the Object of the Pledge.
10. EXTINCTION AND CANCELLATION OF THE PLEDGE
(a) Notwithstanding the points established in section (b) below, at the
expiration of the Guaranteed Period, the Pledge will be completely released
by the Guaranteed Creditor at the request of the Constituent and with all
expenses paid by the Constituent, and, as a result, the Shares will again
become free and all the Associated Rights will return to the Constituent,
and the Guaranteed Creditor will consent to the annotation of the
cancellation of the Pledge, giving instructions to the Depositary Bank in
this regard.
(b) After the complete and unconditional fulfillment of the Guaranteed
Obligations, upon the written request of the Constituent for the release of
the Pledge, the Guaranteed Creditor will consent, through the Agent, to
completely release the Pledge and to note the cancellation of the Pledge
before the expiration of the Guaranteed Period, giving instructions to the
Depositary Bank in this regard, on the condition that the Company has given
the following documents to the Agent, in a form considered satisfactory by
the Agent:
(i) the last annual certified balance sheet, the last semi-annual report
and the last quarterly report, certified in accordance with the law;
(ii) any prospectus, documentation, and/or information document
communicated to the public and/or to Consob, in the year prior to the
date of the complete and unconditional fulfillment of the Guaranteed
Obligations, in accordance with Part II, Sections I and II, and Part
III, Section I of the Regulation of the Issuers;
16
from which there is no fact or circumstance from which the Agent can feel
in good faith that the Constituent is in a state of insolvency or that it
will become insolvent, or subject to bankruptcy procedure, liquidation, or
any other similar procedure in Italy or abroad, in the two years subsequent
to the date of release to the Agent of the documents discussed in this
section b); and
(iii) a statement issued by a member of the Board of Directors of the
Constituent with executive duties, in which he or she declares that
the Constituent, on the date of the complete and unconditional
fulfillment of the Guaranteed Obligations and at the time of the
release of the statement to the Agent: (A) was not and is not in the
situation discussed in Article 2446 and 2447 of the civil code; (B)
was not and is not in a state of insolvency; and, on the basis of the
information in possession on that date (C) no fact or circumstance
occurred or is occurring that may cause in good faith and reasonable
feeling that the Constituent may be in a state of insolvency or may
become insolvent, in liquidation, subject to bankrupcy or any similar
procedure in Italy or abroad which is based on good grounds, in the
two years following (or in any other term, as established by law) the
date of issue of the aforementioned declaration to the Agent.
(c) Upon the written request on the part of the Constituent sent to the
Guaranteed Creditor and the Depositary Bank, and at the cost, expenses, and
Taxes of the Constituent, when the situations discussed in article 7.8 of
the Loan Contract, in accordance with the terms established therein:
(i) the Guaranteed Creditor agrees to partially release the Pledge limited
to the specific Shares specified in the Release Certificate, by
signing a document for the partial return of the Pledge; and
(ii) the Depositary bank agrees to perform, after signing the document
discussed in point (i) above, all the actions necessary for the
partial release of the Pledge, including the cancellation of the
Pledge, limited to the Shares indicated in the Release Certificate.
(d) It is hereby understood that despite the partial release of the Pledge
discussed in section (c) above, the Pledge will continue to be fully valid
and effective for all the remaining Shares not specified in the Release
Certificate.
11. INDEMNITY, TAXES, COSTS, AND EXPENSES
11.1 RESPONSIBILITIES OF THE GUARANTEED CREDITOR, THE AGENT, AND THE
DEPOSITARY BANK
Neither the Guaranteed Creditor, the Agent, nor the Depositary Bank will be
responsible except in the case in which they have acted with wilful
misconduct or gross negligence, for damages caused to the Constituent or to
the Company as a result of their exercising or their failure to exercise
the rights, actions, or measures to which they are entitled in accordance
with this Document.
11.2 TAXES AND EXPENSES
(a) All the taxes and fees, and also all the costs and expenses related to the
negotiation, stipulation, fulfillment, and execution of this Document and
the payments to be made on the basis of this Document, including solely for
the purposes of example and not considered a complete list, the legal
expenses (according to the agreements made in a letter dated November 26,
2004 addressed to the Constituent by Xxxxx & Xxxxx - Associated Law
Offices) and the notary expenses and the expenses and fees for recording
the document, together with other expenses that may arise due as a result
of the use of this document, shall be the exclusive responsibility of the
Constituent.
17
(b) All the Taxes, fees, costs, and expenses (including legal and notary
expenses) incurred by the Agent or by the Guaranteed Creditor in relation
to the protection, the maintenance and the settlement of the Pledge, will
be the exclusive responsibility of the Constituent.
11.3 INDEMNITY
(a) The Constituent will hold the Agent, the Guaranteed Creditor, and the
Depositary Bank free from any responsibility in terms of taxes, duties,
costs, expenses, and honoraria (including legal and notary expenses) as
discussed in the present Article 11.2 and for those expenses incurred by
the Agent and the Guaranteed Creditor in relation to::
(i) the constitution, protection, and settlement of the Pledge; and
(ii) any fulfillment on the part of the Constituent of the obligations
discussed in this Document.
(b) The Constituent shall reimburse the Agent for these fees and expenses
within 5 business days from the receipt of the written request on the part
of the Agent.
12. COMMUNICATIONS 12.1 THE FORM OF THE COMMUNICATIONS
Unless otherwise established in this Document or in accordance with the
law, all the communications in accordance with this Document must be made
in the form and in the manner established by Article 32 (Notices) of the
Loan Contract.
12.2 ADDRESSES
(a) With the exception of the points indicated in Article 12.3, all the
communications relating to this Document must be sent to the following
address:
(i) if sent to the Agent:
Banca di Roma S.p.A.
Address: Xxxxxx X. Xxxxxx xx. 1, Milan
Tel.: 00 00000 000
Fax: 00 00000 000
Attention: Xxxxxxx Xxxxxxxxx / Xxxxxxxxx Xxxxxx
(ii) if sent to the Constituent:
Olimpia S.p.A.
Address: Xxxxx Xxxxx xx. 222, Milan
Tel: 00 0000 0000
Fax: 00 0000 0000
Attention: Xxxxxx Xxxxxx / Xxxxxx Xxxxxxxxx
(iii) if sent to the Company:
Telecom Italia S.p.A.
Address: Piazza Affari no. 2, Milano
Tel.: 00 0000 0000
Fax: 00 0000 0000
Attention: Xxxxxx Xxxxxx c/o Pirelli / Xxxxxx Xxxxxxxxx
c/o Pirelli
18
(iv) if sent to the Depositary Bank:
Banca di Roma S.p.A.
Address: Xxxxxx X. Xxxxxx xx. 1, Milano
Tel.: 00 00000 000
Fax: 00 00000 000
Attention: Xxxxxxx Xxxxxxxxx / Xxxxxxxxx Xxxxxx
(b) In the event that one of the parties has indicated a certain department or
manager as the recipient of the communication, any communication sent
without an indication of this department or this manager will be considered
without effect.
(c) With the exception of the points established in Article 12.3, each party
may communicate a different address to the other, through registered letter
with return receipt, (which must be in Italy) to which the necessary
communications should be sent in accordance with this document, when 5
(five) days have passed from the receipt of the aforementioned registered
letter with return receipt.
12.3 THE SELECTION OF LEGAL DOMICILE
For the purposes of the communications relating the procedures discussed in
this Document (including, for the purposes of example, the communications
discussed in Article 2797 of the civil code), the Constituent selects legal
domicile at its offices ion Xxxxx Xxxxx xx, 000 Xxxxx.
13. MISCELLANEOUS STIPULATIONS
13.1 WAIVERS
(a) The rights of the Guaranteed Creditor in terms of this Document:
(i) may be exercised whenever necessary; and
(ii) these rights may be waived only in writing and specifically.
(b) A delay in exercising these rights or the failure to exercise any of these
rights on the part of the Agent or of the Guaranteed Creditor as discussed
in this Document does not constitute a waiver of these rights.
13.2 MODIFICATIONS AND WAIVERS
Any modifications of the stipulations of this Document, waivers of rights
arising therefrom will have an effect only if approved in writing by the
Constituent and by the Guaranteed Creditor.
19
13.3 OTHER GUARANTEED RIGHTS
The right of guaranteed constituted by this Document shall be added to and
shall not affect the other guaranteed rights held or to be held by the
Guaranteed Creditor in respect to the Guaranteed Obligations.
13.4 SALES AND NOVATIONS
(a) This Document shall be binding for the Constituent, his successors,
transferees, and those having rights thereto even in the event of a Sale,
and the parties expressly agree to the continuation of the Pledge in the
event of a sale, in accordance with Article 1232 of the civil code.
(b) The Constituent must confirm in writing, whenever so requested by the Agent
on the occasion or before any Sale, and give his consent to the
continuation of the Pledge in the situations discussed in Section (a) of
the present Article 13.4.
(c) When such a sale occurs, the Constituent must promptly:
(i) ensure that the Depositary Bank updates the information in the
Restriction Account in accordance with the points established in
Article 45 of the Consob Decision, giving prompt notification to the
Company in accordance with and to the effects of Article 87 of the
TUF;
(ii) to ensure that the Company records the Sale in its Book of
Shareholders within 3 (three) business days from the fulfillment of
the formalities discussed in point (i) above, and
(iii) given the Agent an authenticated copy of the pages of the Book of
Shareholders of the Company proving that the annotation occurred
within 3 (three) business days in accordance with the formalities
discussed in point (ii) above.
(d) Any amount due for taxes, expenses, costs, withholdings and similar fees,
including, solely for the purposes of example and not a complete list,
legal and notary expenses and the expenses for the recording of the
document which should be due or become due as a result of the Sale, will be
incurred according to the points established in the Loan Contract.
13.5 CUMULATIVE SHARES
The rights, shares, and measures established by this Document in favor
of the Guaranteed Creditor are added to and do not exclude the other
rights, actions, and measures which the Guaranteed Creditor should hold
on the basis of contracts (including, solely for the purposes of
example, those established by the Loan Contract and those related to
each Loan Document) or in accordance with the law.
13.6 LETTER OF THE COMPANY
The Constituent hereby agrees that within 5 (five) business days from
the stipulation of this Document, it will notify the Company of the
constitution of the Pledge and shall accept all the matters agreed upon
in relation to the transfer, in favour of the Guaranteed Creditor of
the right to receive Dividends and to exercise the voting rights and
administrative rights related to the Shares.
20
13.7 PARTIAL INVALIDITY
The circumstance that, at any time, one or more of the stipulations of
this Document should become invalid, ineffective, or unenforceable
shall not have any effect , and shall in no way influence the validity,
effectiveness, and enforceability of the other stipulations of this
Document.
14. THE LAW GOVERNING THE DOCUMENT AND LEGAL JURISDICTION
14.1 THE LAW GOVERNING THE DOCUMENT
This document shall be governed by Italian law.
14.2 LEGAL JURISDICTION
For any dispute related to the interpretation, conclusion, execution,
or dissolution of this Document, or related thereto, the exclusive
jurisdiction shall lie with the Court of Milan, notwithstanding the
right of the Guaranteed Creditor to bring legal suit against the
Constituent before any competent legal authority.
London, January 20, 2005.
21
SIGNERS
CONSTITUENT
OLIMPIA S.p.A.
______________________________________
AGENT
BANCA DI ROMA S.p.A.
______________________________________
ORIGINAL LENDERS
BANCA DI ROMA S.p.A.
______________________________________
BANCA INTESA S.p.A.
______________________________________
BIPOP CARIRE S.p.A.
______________________________________
22
BANCO DI SICILIA S.p.A.
______________________________________
IRFIS MEDIOCREDITO XXXXX XXXXXXX S.p.A.
______________________________________
MCC S.p.A.
______________________________________
UNICREDIT BANCA D'IMPRESA S.p.A.
______________________________________
CALYON S.A., Milan Office
______________________________________
XXXXXX XXXXXXX BANK INTERNATIONAL LIMITED, Milan Office
______________________________________
23
XXXXXX XXXXXXX EUROPEAN FUNDING, INC.
______________________________________
SOCIETE GENERALE, Milan Office
______________________________________
DEPOSITARY BANK
BANCA DI ROMA S.p.A.
______________________________________
24
ADDENDUM 1
DESCRIPTION OF THE LOAN
TRANCHE A
MAXIMUM AMOUNT: 2,100,000,000 Euro
PAYEE: OLIMPIA S.p.A.
PERIOD OF USE: from the Closing Date to the date that falls on
the second month after (and including) the Closing
Date
FINAL EXPIRATION DATE the fifth anniversary of the date the Loan
Contract is signed
INTEREST RATE: EURIBOR increased by the Margin, equal, in
relation to the first use, to one percent per
year, notwithstanding any adjustments established
by Article 8.3 (Margin adjustments) of the Loan
Contract
REPAYMENT: with a "revolving" method at the end of each
interest period (Term), and at any rate by and no
later than the Expiration Date
TRANCHE B
MAXIMUM AMOUNT: 70,000,000 Euro
PAYEE: OLIMPIA S.p.A.
PERIOD OF USE: from the Closing Date to the Expiration Date
FINAL EXPIRATION DATE the fifth anniversary of the date the Loan
Contract is signed
INTEREST RATE: EURIBOR increased by the Margin determined on the
basis of the adjustments established by Article
8.3 (Margin adjustments) of the Loan Contract
REPAYMENT: with a "revolving" method at the end of each
interest period (Term), and at any rate by and no
later than the Expiration Date
25
TRANCHE C
MAXIMUM AMOUNT: 230,000,000 Euro
PAYEE: OLIMPIA S.p.A.
PERIOD OF USE: from the Closing Date to the Expiration Date
FINAL EXPIRATION DATE the fifth anniversary of the date the Loan
Contract is signed
INTEREST RATE: EURIBOR increased by the Margin determined on the
basis of the adjustments established by Article
8.3 (Margin adjustments) of the Loan Contract
REPAYMENT: with a "revolving" method at the end of each
interest period (Term), and at any rate by and no
later than the Expiration Date
26
ADDENDUM 2
TEXT OF THE ANNOTATIONS IN THE BOOK OF SHAREHOLDERS
PART 1
TEXT OF THE ANNOTATION IN THE BOOK OF SHAREHOLDERS
"It is hereby noted that in accordance with the pledge document
stipulated on January 20, 2005 Olimpia S.p.A. a company operating under Italian
law and with legal offices in [o] (the CONSTITUENT), the bearer of. [o] ordinary
shares in Telecom Italia S.p.A. (the COMPANY) with a nominal value of [o] Euro
each, representing [o]% of the corporate capital of the Company represented by
shares with Ordinary Voting Rights (the SHARES), has constituted these shares as
a first degree pledge in favor of [o], a company operating under [o] law, with
legal offices in [o], [o] (the Agent) in favor of [o], a company operating under
[o] law, with legal offices in [o], [o], [o], a company operating under [o] law,
with legal offices in [o], [o](the ORIGINAL LENDERS and, together with the
Agent, the GUARANTEED CREDITOR).
These shares are stipulated as a first degree pledge to guarantee the
obligations of the Constituent and in accordance with the loan contract called
the "Agreement" stipulated between, inter alios, the Constituent and the
Guaranteed Creditor for a total maximum amount of 2,400,000,000 Euro. The voting
rights and the dividends are regulated by Article 5 of the aforementioned Pledge
Document. Finally, it is hereby noted that with a letter dated [o], 2005
addressed to the Agent, the Company has duly recognized the stipulations and
terms of the aforementioned Pledge Document, a copy of which is filed with the
documents of the Company."
PART 2
TEXT OF THE ANNOTATION IN THE BOOK OF SHAREHOLDERS REGARDING THE
PLEDGE ON NEWLY ISSUED SHARES
"It is hereby noted that on [o], Olimpia S.p.A, a company operating
under Italian law and with legal offices in [o] (the CONSTITUENT) has been
assigned by the Company, [o] newly issued shares as a result of an increase in
free capital. In accordance with the pledge document stipulated on January [o],
2005, these shares are stipulated as a first degree pledge in favor of [o], a
company operating under [o] law, with legal offices in [o], [o] (the AGENT) and
in favour of [o], a company operating under [o] law, with legal offices in [o],
[o], [o], a company operating under [o] law, with legal offices in [o], [o] (the
ORIGINAL LENDERS and, together with the Agent, the GUARANTEED CREDITOR) as a
guarantee for the obligations of the Constituent in accordance with: the loan
contract called the "Agreement" stipulated between, inter alios, the Constituent
and the Guaranteed Creditor for a total maximum amount of 2,400,000,000 Euro.
The voting rights and the dividends are regulated by Article 5 of the
aforementioned Pledge Document, a copy of which is filed with the documents of
the Company."
27
