Exhibit 83
On June 28, 2005
Between
OLIMPIA S.P.A.
(the Constituent)
and
BANCA MONTE DEI PASCHI DI SIENA S.P.A.
(the Bank, the Depositary)
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DOCUMENT OF PLEDGE ON DEMATERIALIZED SHARES
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INDEX
Article Page
Intepretation...............................................................2
Guarantee...................................................................5
Guaranteed Obligations......................................................7
Perfecting of the Pledge....................................................7
Voting Rights and Related Rights............................................7
Rights to Warrants and Convertible Bonds....................................9
Execution of the Pledge.....................................................10
Representations and Warranties..............................................11
Commitments of the Constituent..............................................11
Extinction and Cancellation of the Pledge...................................13
Indemnities, Fees, Costs and Expenses.......................................14
Communications..............................................................16
Miscellaneous Provisions....................................................17
Governing Law and Jurisdiction..............................................17
This PLEDGE INSTRUMENT is executed on Basel on June 28, 2005 between:
(1) OLIMPIA S.P.A., a company under Italian law with registered office in
Milan, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇, Tax identification number and registration
number in the Registry of Companies of Milan 03232190961, with capital of
Euro 4,630,233,510.00 fully paid-in (the "Constituent");
(2) BANCA DI PASCHI DI SIENA S.P.A., a company under Italian law, with
registered office in Siena, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇ with capital of Euro
1,935,272,832.00 fully paid-in, Tax identification number 00884060526 and
registration number in the Registry of Companies of Siena No. 9782, (the
"Bank", the "Depositary");
RECITALS:
Under a financing contract (the "Financing Contract") signed on June 28,
2005 between the Bank and the Constituent, the Bank undertook to grant to
the Constituent financing in a total amount of Euro 600,000,000 (the
"Financing") under the terms of the Financing Contract. The Financing is
described in more detail in Addendum 1;
The Constituent is the holder of 230,464,309 common shares of the Company
(as defined below) with a par value of Euro 0.55 each (the "SHARES");
The shares are included in the centralized management system under
dematerialization, pursuant to article 28 et seq. of Legislative Decree No.
213 of June 24, 1998, as amended and expanded from time to time (the "Euro
Decree");
The Depositary, in the capacity of depositary and certified broker pursuant
to Legislative Decree No. 58 of February 24, 1998, as amended and expanded
from time to time (the "TUF"), is the depositary of an account in the name
of the Constituent, designed, inter alia, to record the constitution of
liens on the Shares in possession of the Constituent and pursuant to
article 34 of the Euro Decree;
As a condition for the granting of the Financing, the Constituent has
agreed, inter alia, to constitute in favor of the Bank a first pledge on
the Shares in order to guarantee its obligations under the Financing
Contract;
The Depositary will carry out all necessary formalities for the perfecting
of the Pledge (as defined below) constituted pursuant to this Instrument.
WITH THESE RECITALS, it is agreed and stipulated as follows:
1. INTERPRETATION
(a) The recitals and addenda constitute an integral and substantial part
of this Instrument. Whenever the context requires, the terms defined
in the singular will have the same meaning whenever used in the plural
and vice versa.
(b) The terms defined in the Financing Contract have the same meaning when
used in this Instrument, except if otherwise established in this
Instrument.
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Definitions
In this Instrument:
"Financial Activity" means the Cash Equivalent and other financial
instruments under centralized management indicated in the Financing
Contract under the definition of Collateral.
"Shares" have the meaning defined in Recital B.
"Bank" has the meaning attributed to the term Bank in the Financing
Contract, and every reference to the Bank in this Instrument must be
understood as a reference to the Bank pursuant to the Financing Contract.
"Cause of Execution" means:
(c) occurrence of an Event of Default as referred to in article 19 (Events
of Default) of the Financing Contract as a result of which the Bank
sends to the Constituent a communication pursuant to article 19.13
(Effects related to the occurrence of a Case of Cancellation or Case
of Withdrawal) of the Financing Contract, with the exception of the
Events of Default described in article 19.6 (Insolvency) under (a) and
under (d) and in Article 19.7 (Bankruptcy Proceedings) under (a) (i)
and under (a) (ii), whenever said communication is not delivered in
writing, and with the exception of the hypothesis described in said
article in paragraph (b);
(d) occurrence of any other event of the Financing Contract that causes
the forfeiture ex lege of the Guaranteed Obligations; or
(e) absence of payment by the Constituent of the Guaranteed Obligations
described in subparagraph (d) of the Definition of "Guaranteed
Obligations" of this Instrument within 5 (five) Business Days from
receipt of the request for payment sent by the Bank.
"Assignment" means any modification or partial or full assignment of
the Financing Contract and this Instrument, i.e. any modification or assignment
or novation of the Guaranteed Obligations, included merely illustratively, any
transfer realized pursuant to Article 26.2 (Assignment and transfers by the
Bank) of the Financing Contract.
"Blocked account" means blocked account No. 111095.36 opened by the
Constituent with the Depositary.
"Financing Contract" has the meaning in Recital A.
"Euro Decree" has the meaning in Recital C.
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"Guarantee decree" means Legislative Decree No. 170 of May 21, 2004,
as amended and expanded from time to time.
"Consob Decision" means Consob Decision No. 11768 of December 23,
1998, as amended and expanded from time to time.
"Related rights" means:
(a) any Dividend;
(b) any option right related to the to Shares or the Related
Securities;
(c) any share or other security or rights attributed or attributable
to the Constituent in exchange for or in connection with any
Related Security; and
(d) any other revenue arising from the items listed in letters (a),
(b) and (c) of this paragraph.
"Dividends" means:
(a) any dividend and advance on dividends paid or payable in
connection with the Shares and stocks which are part of the
assets placed in pledge under this Instrument after the date of
this Instrument;
(b) any other distribution (in money or in kind), interest or other
amount paid or payable in connection with the Shares (including,
illustratively, any amount paid or payable as a result of a
distribution of reserves, under any name, or reimbursement by the
Company of the contributions of the partners or liquidation of
the Company);
(c) any dividend, distribution or other amount paid or payable in
connection with the Related Securities.
"Financing" has the meaning in Recital A.
"Bankruptcy Law" means Royal Decree No. 267 of March 16, 1942, as
amended and expanded from time to time.
"Coverage level" has the meaning attributed to the term VTL in the
Financing Contract.
"Guaranteed Obligations" means:
(a) all monetary obligations of the Constituent related to the
Financing, including, in particular, those related to the correct
performance of the payment obligations related to capital, interest, late
interest, costs and expenses, compensations, indemnities, commissions,
charges or other tax obligations, any amount due because of the
reimbursement or prepayment of a part or the entire amount of the Financing
on a date other than that contractually established (Breach Costs) and all
the other costs, expenses, charges or other tax obligations or fees
(including legal expenses) owed in connection with the protection or
execution of the rights of the Bank pursuant to the Financing Contract or
as a result of the exercise by the Bank of the rights and remedies set
forth in the Financing Contract;
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(b) all monetary obligations of the Constituent arising from the
invalidity or inefficiency of the obligations referred to in
paragraph (a), such as, illustratively, ex article 2033 or
article 2041 of the civil code;
(c) all monetary obligations of the Constituent in the event of
retraction or inefficiency pursuant to article 65 or article 67
of the Bankruptcy Law (or any other similar norm according to the
applicable law) of any payment made by the Constituent or a third
party in order to fulfill the obligations referred to in
paragraphs (a) and (b); as well as
(d) all monetary obligations of the Constituent pursuant to this
Instrument.
"Object of the Pledge" means, collectively, on the execution date of
this Instrument, the Shares, Related Securities and Related Rights, and,
subsequently, the Financial Assets, identified by the Constituent, to which the
Constituent may extend the Pledge from time to time, completing the financial
guarantee given hereunder.
"Pledge" means the pledge on the Object of the Pledge created by this
Instrument, on the execution date, as well as, subsequently, as extended and
completed pursuant to this Instrument.
"Guarantee Period" means the period that begins on the date of this
Instrument and ends with the full and unconditional implementation of the
Guaranteed Obligations; with the understanding that if, in the meantime, the
Constituent or any other subject that has made payments to cover Guaranteed
Obligations on its own behalf is declared bankrupt or is subject to any
bankruptcy proceeding that determines the application of article 65 or article
67 of the Bankruptcy Law (or any other similar norm according to the applicable
law), such term will be extended until no cancellation action may be carried
out.
"Issuing Regulations" means Consob decision No. 11971 of May 28, 1999,
as amended and expanded from time to time.
"Amendment of Company Law" means Legislative Decree No. 6 of January
17, 2003 on the amendment of the regulations on capital companies and
cooperatives by application of law No. 366 of 3 October 2001 (organic amendment
of the regulations on capital companies and cooperatives by application of law
No. 366 of 3 October 2001), as amended and expanded from time to time.
"Company" means TELECOM ITALIA S.P.A., a company under Italian law
with registered office in ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇, Tax identification number
and number of registration in the Registry of Companies of Milan 00488410010,
with capital of Euro 10,667,339,007.05 fully paid-in.
"TUF" has the meaning indicated in Recital D.
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"Related Securities" means any share or other security, right or
proceed attributed or attributable at any time to the Constituent in exchange
for or related to Shares (including, illustratively, as a result of merger,
demerger or transformation of the Company).
2. GUARANTEE
2.1 Pledge
The Constituent irrevocably constitutes the Object of the Pledge in
first pledge in favor of the Bank.
2.2 Replenishing of the guarantee with additional Financial Assets
In the event that it the conditions referred to in articles 4.2(b),
4.3(b), 7.4(b) and 7,9 (voluntary additional Collateral) of the Financing
Contract are not met, according to and for the purposes established therein, the
Constituent may or will be obligated, as the case may be, to replenish the
Pledge in favor of the Bank on additional Financial Assets identified from time
to time by the Constituent, so as to guarantee the Coverage Level provided for
in the Financing Contract from time to time.
2.3 Formalities related by the perfecting of the pledge on future Shares and
additional Financial Assets Whenever:
(a) the Company issues new shares following free capital increases; or
(b) the Constituent must or has intention to constitute in pledge
additional Financial Assets pursuant to the Financing Contract,
the Constituent, in connection with:
(i) either the newly issued shares, or the additional Financial
Assets (with the exception of those represented by Cash
Equivalents) (collectively, the "New Financial Instruments"),
must at the same time:
cause the Depositary to complete all the necessary formalities
for the perfecting of the pledge on the New Financial
Instruments, and in particular registrations, and the Depositary
undertakes to record, including them in the pledge, the New
Financial Instruments on Blocked Accounts held pursuant to
article 34 of the Euro Decree, as indicated in article 45 of the
Consob Decision, giving timely communication to the Company
pursuant to article 87 of the TUF; and
cause the Company, when receiving the communication referred to
in paragraph (A) above:
(1) register the constitution of the Pledge on the New Financial
Instruments in the register of shareholders and the other
corporate books of the Company; and
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(2) deliver to the Bank a copy of the pages of the register of
shareholders and of the other corporate books of the Company
proving said registration.
(ii) concerning the financial guarantee constituted on the Cash
Equivalents, must record the payment of the cash in the
appropriate account pursuant to article 2 of the Guarantee
Decree.
2.4 Regulation of the Pledges
The provisions of this Instrument will apply to all Pledges created
pursuant to this Article 2.
3. GUARANTEED OBLIGATIONS
The Object of the Pledge is constituted in first pledge for the
benefit of the Bank to guarantee the Guaranteed Obligations.
4. PERFECTING OF THE PLEDGE
(a) The Constituent must assure that:
(i) the Depositary carries out all necessary formalities for the
perfecting of the pledge, and in particular registrations, and
the Depositary undertakes to record, including them in the
pledge, the New Financial Instruments on Blocked Accounts held
pursuant to article 34 of the Euro Decree, as indicated in
article 45 of the Consob Decision, giving timely communication to
the Company pursuant to article 87 of the TUF; and
(ii) the Company:
(A) on receipt of the communication referred to in paragraph (a) (i)
above, registers the constitution of the Pledge in the register
of shareholders of the Company; and
(B) within 20 (twenty) Business Days from the receipt of the
communication referred to in paragraph (a) (i) above, delivers to
the Bank a copy of the pages of the register of shareholders of
the Company proving that the registration was made.
(b) Until the release of the Pledge pursuant to Article 10 of this
Instrument, the Shares will remain recorded in the Blocked Account.
(c) The Depositary, in compliance with the Euro Decree, will issue, at the
request of the holder of the voting right, according to Article 5
below, the necessary certificates for the exercise of the rights
related to Shares.
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5. VOTING RIGHTS AND RELATED RIGHTS
5.1 Voting Rights
Until the communication from the Bank - according Article 5.3(a)
below - concerning the occurrence of an Event of Default, the voting rights and
administrative rights related to the Shares, both in the ordinary shareholders'
meetings, and in the extraordinary shareholders' meetings of the Company, will
be kept by the Constituent, with the understanding that such rights may not,
under any circumstances, be exercised by the Constituent so as:
(i) to cause the occurrence of an Event of Default; or
(ii) to jeopardize the validity, the efficacy and the enforceability
of the Pledge or the rights of the Bank inherent to the Pledge
and to the Object of the Pledge.
After the Constituent receives the communication sent by the Bank
pursuant to Article 5.3(a) below, and for the entire period in which the Event
of Default persists pursuant to the Financing Contract, the voting rights and
the administrative rights related to the Shares, both in ordinary shareholders'
meetings and in the extraordinary shareholders' meetings of the Company, may be
exercised by the Bank.
5.2 Related rights
Until the communication of the Bank - referred to in Article 5.3(a) below -
concerning the occurrence of an Event of Default, the Constituent has the
right to receive Dividends.
5.3. Occurrence of an Event of Default
(a) In the occurrence of an Event of Default, the Bank will send a
communication to the Constituent, to the Depositary and the Company
informing them of the occurrence of the Event of Default and, for the
entire period in which the Event of Default persists pursuant to the
Financing Contract and in any case until such time as the Bank
communicates in writing to the Constituent, to the Depositary and to
the Company that the Event of Default has ceased, was waived or
remedied, the Bank:
(i) will be entitled (but not obligated), while respecting the
obligation to communicate to the Company and to Consob pursuant
to TUF and any other applicable law, to exercise the voting and
administrative rights related to the Shares, both in ordinary
shareholders' meetings and in extraordinary shareholders'
meetings of the Company; and
(ii) will receive all Dividends. The Dividends so received from the
Bank will be applied to cover matured Guaranteed Obligations or,
in the absence of matured Guaranteed Obligations, will be
withheld by the Bank to guarantee Guaranteed Obligations and
applied to cover them after the occurrence of a Cause of
Execution. It is understood that, in the event of a Event of
Default referred to in paragraph (a) has ceased, was waived or
remedied, the Bank must, promptly and, however, within 5 (five)
Business Days from the aforesaid cessation, waiver or remedy,
transfer to the Constituent the sums corresponding to Dividends
so withheld by the Bank.
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(b) The Constituent authorizes the Depositary as of now to take all
necessary steps in order to enable the Bank to exercise the rights
referred to in the previous paragraph (a).
(c) The Constituent waives by this Instrument to raise or propose any
claim, action, defense, exception or opposition as to the legitimacy
of the Bank to exercise the rights referred to in the previous
paragraph (a) or the modality of exercise of such rights by the Bank.
Such claims, actions, defense, exceptions or oppositions:
(i) may be raised or proposed only in case of fraud or gross
negligence of the Bank and, provided that the communication
referred to in the previous paragraph (a) has not already been
waived by the Bank, only in order to request compensation for
possible damage incurred as a result of the fraud or gross
negligence; and
(ii) will not have any effect on the exercise of the voting rights or
administrative rights or the rights to Dividends, of the Bank and
to the Bank, referred to in the previous paragraph (a).
6. RIGHTS TO WARRANTS AND CONVERTIBLE BONDS
6.1 Pledge on Warrants and Convertible Bonds
In the event that the Pledge is extended, pursuant to Articles 2.3
and 2.4 above, to additional Financial Assets represented by warrants or
convertible bonds of the Company (the "Warrants" and the "Convertible bonds"),
the provisions set forth in Article 6.2 below.
6.2 Regulations on the rights to Warrants and Convertible bonds
(a) The Pledge constituted on Warrants and Convertible bonds
notwithstanding, the parties agree that the Constituent keeps the
absolute right to exercise the Warrants and to convert the Convertible
Bonds.
(b) The Constituent may ask the Bank, also in several tranches, to
exercise the Warrants and/or to convert the Convertible Bonds in the
name and on behalf of the Constituent, sending a communication to the
Bank at least 5 (five) Business Days before the day said right is
exercised and, concerning Warrants, after paying, in the same terms,
the sum necessary for the subscription of the shares of the Company
arising from the exercise of the Warrants.
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(c) It is understood that the shares of the Company subscribed as a result
of the exercise of the Warrants and/or the conversion of the
Convertible Bonds must be deposited in the Blocked Account and are
understood as of now irrevocably constituted in first pledge in favor
of the Bank to guarantee the Guaranteed Obligations.
(d) The Constituent must assure that the Depositary carries out, and the
Depositary undertakes to carry out, all necessary formalities for the
perfecting of the pledge pursuant to Article 4 (Perfecting of the
pledge) on the shares arising from the exercise of the Warrants and
from the conversion of the Convertible Bonds.
(e) The Constituent grants to the Bank all powers of representation
necessary in order to carry out the provisions of this Article in
relation to the exercise of the Warrants and the conversion of the
Convertible Bonds in the name and on behalf of the Constituent, and
will reimburse to the Bank Tax all; taxes and contributions, as well
as the cost, expense and fees (including lawyers' fees) incurred in
the accomplishment of the steps referred to in the previous paragraph.
7. EXECUTION OF THE PLEDGE
(a) In the event of a Cause of Execution and at all subsequent times, the
Bank, without prejudice to its right or action, will be entitled:
(i) to cause the sale of the Object of the Pledge or part thereof, 5
(five) days after the Constituent's receipt of the communication
sent by the Bank pursuant to article 2797, first paragraph, of
the civil code, without prejudice to the right referred to in
article 2798 of the civil code; or, at the choice of the Bank:
(ii) pursuant to article 4 of the Guarantee Decree, including in the
event of opening of a liquidation or reorganization procedure (as
defined respectively in the Guarantee Decree):
(a) to proceed with the appropriation of the Object of the
Pledge up to the amount of the Guaranteed Obligations. For
this purpose, the parties to this Instrument expressly agree
that, as principle of appraisal pursuant to article 4.1.(b)
of the Guarantee Decree, the Object of the Pledge will be
estimated according to the official average price thereof
recorded in the previous 25 (twenty-five) days of stock
exchange trading prior to the day of the Constituent's
receipt of the communication referred to in Article 5.3
above; or
(b) to sell the Object of the Pledge or part thereof and to
withhold the proceeds in order to cover the Guaranteed
Obligations.
(b) In the cases set forth in paragraph (a) (i) above, the Constituent and
the Bank agree that the respective sale of the Object of the Pledge,
without prejudice to the right referred to in article 2797, second and
fourth paragraphs and article 2798 of the civil code, may be carried
out, in full or in part, also in several installments, with or without
auction, but in any case:
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(i) through an authorized financial broker chosen by the Bank or
another person authorized for such acts identified by the Bank;
or, at the choice of the Bank,
(ii) through a judicial officer.
(c) In the cases set froth in the paragraph (a) (ii) above, pursuant to
article 4.2 of the Guarantee Decree, the Bank must immediately inform
in writing the Constituent or, if applicable, the entities carrying
out the liquidation or reorganization procedure, concerning the
modality of execution adopted and the amount obtained.
8. REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties of the Constituent
Without prejudice to the representations and warranties referred to
in the Financing Contract, the Constituent declares to the Bank the following:
(a) the Constituent is the only legitimate owner of the Shares. With the
exception of the Pledge, the Shares are free from any lien, charge,
right of guarantee, encumbrance, restriction, privilege or any other
legal or contractual encumbrance, in favor of third parties, except
for the liens arising directly and exclusively from the law;
(b) The Shares have been validly issued, subscribed and paid up pursuant
to the current provisions of law;
(c) the Constituent has full capacity and powers to execute this
Instrument and to validly constitute and perfect the Pledge;
(d) the Pledge under this Instrument, as a result of the performance of
the formalities referred to in Article 4, will constitute a first
pledge on the Shares to guarantee the Guaranteed Obligations, valid
and binding for the Constituent, the Company and third parties;
(e) the creation and perfecting of the pledge are within the corporate
object of the Constituent and the Constituent has obtained all
authorizations (corporate or others) necessary in relation to the
constitution of the Pledge;
(f) the creation and perfecting of the Pledge and the provisions of this
Instrument are not in conflict with any contract, agreement or
commitment to which the Constituent or the Company is a party or any
law, regulations or corporate document binding for the Constituent and
the Company, which they are or must be aware by ordinary diligence.
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8.2 Reiteration of the representations and warranties
All representations and warranties of the Constituent pursuant to
Article 8.1 above will be deemed reiterated by the Constituent on the delivery
date of each Drawdown Request and as of the first day of each Interest Period,
with reference to the facts and circumstances existing from time to time, as if
they were carried out at that moment.
9. COMMITMENTS OF THE CONSTITUENT
Except as set forth in Article 10(b) below, until the expiration of
the Guaranteed Period, the Constituent undertakes:
(a) not to take steps (including, merely illustratively, in the exercise
of the voting rights or administrative rights of the shares) that may
impair the validity, effectiveness and enforceability of the Pledge or
the rights of the Bank inherent in the Pledge and the object of the
Pledge;
(b) to take at its own expense any action necessary to guarantee the
validity, effectiveness and enforceability of the Pledge and the
rights of the Bank, also, illustratively and without limitation
thereto, against possible claims of third parties;
(c) to promptly inform the Bank of any claim raised by third parties in
court in relation to the Object of the Pledge of such a nature as to
involve an significant prejudicial effect on the validity,
effectiveness and enforceability of the Pledge and the rights of the
Bank;
(d) to execute and deliver promptly at its own expense all documents and
to take all actions necessary in order to:
(i) perfect the Pledge on the Object of the Pledge;
(ii) carry out all formalities indicated in Article 4 above; and
(iii) enable the Bank to exercise the rights and actions to which it
is entitled pursuant to this Instrument, including without
limitation all rights and actions that may be exercised in the
event of a Cause of Execution; and
(e) not to create or allow creating any lien, guarantee or encumbrance or
right on the Object of the Pledge, except for those arising directly
and exclusively from the law.
10. EXTINCTION AND CANCELLATION OF THE PLEDGE
(a) Without prejudice to the provisions set forth in paragraph (b) below,
at the expiration of the Guaranteed Period, the Pledge will lose
effectiveness, all the rights connected with the Shares will revert to
the Constituent and, at the request and expense of the latter, the
Bank will sign a document of consent to the cancellation of the Pledge
bearing a firm date, giving instructions to the Company and to the
Depositary to make the due notations in the Blocked Account and
shareholders' register.
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(b) After the full and unconditional fulfillment of the Guaranteed
Obligations, at the written request of the Constituent for the full
release of the Pledge, the Bank will consent to the full release of
the Pledge and to the notation of the cancellation of the Pledge even
before the expiration of the Guaranteed Period giving for this purpose
instructions to the Depositary, on the condition that the Constituent
has delivered to the Bank, in a form and content satisfactory to the
Bank:
(i) the last certified annual balance sheet, the last semiannual
report and the last quarterly report of the Company, certified
pursuant to the law, showing no fact or circumstance from which
it can be inferred in good faith that the Constituent is in a
state of insolvency; and
(ii) a declaration issued by the legal representative of the
Constituent, declaring that the Constituent, as of the date of
the full and unconditioned fulfillment of the Guaranteed
Obligations and at the time of the release of the declaration to
the Bank: (A) it was not and it is not in the situations referred
to in article 2446 and 2447 of the civil code; (B) was not and is
not in a state of insolvency.
(c) Upon written request by the Constituent to the Bank and the
Depositary, and with the cost, expense and Fees paid by the
Constituent, in the occurrence of the conditions established in
article 7.8 (Voluntary Reduction of the Collateral) of the Financing
Contract, in compliance with its provisions, or at the time of the
transfer, following a Demerger, to Hopa or one of its Subsidiaries or
a vehicle company incorporated ad hoc with the Transferred Debt,
pursuant to article 27 (Coverage by Hopa) of the Financing Contract,
in the presence of the conditions set forth in paragraph 27.3(c) of
said article:
(i) the Bank undertakes to partially release the Pledge on the Shares
or on the Financial assets specified in the exceeding Certificate
of Release or however the Coverage level, by means of the
subscription of an Instrument of partial cancellation of the
Pledge; and
(ii) the Depositary are engaged to complete, subsequently to the
subscription of the Instrument referred to in the previous
paragraph (i), all the formalities necessary in order to perfect
the cancellation of the Pledge on Shares and other asset
Financial institutions indicated in the being exceeded
Certificate of Release or however the Coverage level.
It remains however meant that, in spite of the partial liberation of
the Pledge of which to This paragraph (c), the Pledge will continue to having
flood validity and effectiveness on all the remaining actions and the Financial
Assets not specified in the Certificate of Release.
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11. INDEMNITIES, FEES, COSTS AND EXPENSES
11.1 Responsibility of the Bank and the Depositary
Neither the Bank nor the Depositary will be responsible, except if
they acted in fraud or gross negligence, for damage caused to the Constituent or
the Company for the exercise or lack of exercise of rights, actions or remedies
to which they are entitled pursuant to this Instrument
11.2 Taxes and expenses
(a) Notary expenses and registration fees or other Taxes that may become
due in the event of use, documented in writing, will be at the
exclusive charge of the Constituent.
(b) All Taxes, dues, costs and expenses (including legal and notary
charges), reasonably incurred by the Bank in relation to the
protection and the maintenance of the Pledge, documented in writing,
will be at the exclusive charge of the Constituent.
11.3 Indemnities
(a) The Constituent will reimburse to the Bank and the Depositary every
Tax and dues, as well as the cost, expenses and fees (including legal
and notary charges), referred to in the Article 11.2 above, as well as
those incurred by the Bank in relation to:
(i) the constitution, protection and execution of the Pledge; and
(ii) any default of the Constituent on the obligations under this
Instrument
(b) The Constituent must reimburse such charges and fees to the Bank
within 5 (five) Business Days from receipt of the respective written
request from the Bank.
12. COMMUNICATIONS
12.1 Form of the communications
Except when otherwise indicated in this Instrument or pursuant to the
law, all the communications under this Instrument must be issued in the form and
by the modalities indicated in article 30 (Communications) of the Financing
Contract.
12.2 Addresses
(a) Except as indicated in Article 12.3, all the communications concerning
this Instrument must be sent to the following address:
(i) if addressed to the Bank:
Banca Monte di Paschi di Siena S.p.A.
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇ Siena
Tel.: ▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇▇▇▇
Attention: Dir. Manfriani/▇▇▇▇▇▇▇▇▇▇▇
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(ii) if addressed to the Constituent:
Olimpia S.p.A.
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇▇
Tel: ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(iii) if addressed to the Company:
Telecom Italy S.p.A.
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇
Tel.: ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇
(iv) if addressed to the Depositary:
Banca Monte di Paschi di Siena S.p.A.
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇ Siena
Tel.: ▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇▇▇▇
Attention: Dir. Manfriani/▇▇▇▇▇▇▇▇▇▇▇
(b) In the event that a party has indicated a certain department or
executive as addressee of the communications, any communication sent
without the indication of such department or executive will be
considered null and void.
(c) Except for, and without prejudice to the provisions set forth in 12.3,
each party may communicate to the other by registered letter A.R a
different address (which must be in Italy) to which it may send the
necessary communications under this Instrument, 5 (five) Business Days
from receipt of said registered letter A.R.
12.3 Election of domicile
For the purposes of the procedures set forth in this Instrument
(including, illustratively, the communications referred to in article 2797 of
the civil code), the Constituent irrevocably elects domicile at its own
registered office at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇.
▇▇. MISCELLANEOUS PROVISIONS
13.1 Waivers
The delay or failure to exercise any of the rights of the Bank under
this Instrument does not constitute waiver of such right.
13.2 Amendments and waivers
Any amendments to the provisions of this Instrument or waivers of
rights thereunder will be effective only if approved in writing by the
Constituent and the Bank.
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13.3 Additional Security Interests
The Security Interest constituted by this Instrument is added to, and
does not impair the additional Security Interests held now or in the future by
the Bank with reference to the Guaranteed Obligations.
13.4 Assignments and novations
(a) This Instrument will be binding for the Constituent, its successors,
assigns and beneficiaries including in case of Assignment and the
parties expressly agree, pursuant to article 1232 of the civil code,
to continue the Pledge in the event of Assignment.
(b) The Constituent must confirm in writing, whenever the Bank requests at
the time of, or before any Assignment, its consent to the continuation
of the Pledge in the event referred to in the paragraph (a) of this
Article 13.4.
(c) At the time of the Assignment, the Constituent must promptly:
(i) cause the Depositary to update the information on the Blocked
account in compliance with article 45 of the Consob Decision,
promptly communicating to the Company for the purposes of article
87 TUF;
(ii) cause the Company to note the Assignment in its register of
shareholders within 10 (ten) Business Days from the completion of
the formalities referred to in the point (i) above; and
(iii) deliver to the Bank a copy of the pages of the register of
shareholders of the Company proving the notation within 5 (five)
Business Days from the completion of the formalities referred to
in point (ii) above.
(d) Any charge for Taxes, fees, expenses, costs, deductions and similar,
included, illustratively and without limitation thereto, the notary
and lawyers' fees and registration expenses due or that become due in
case of use after the Assignment, will be borne as indicated in the
Financing Contract.
13.5 Cumulative actions
The rights, actions and remedies set forth in this Instrument in
favor of the Bank are added to, and do not exclude the additional rights,
actions or remedies to which the Bank is entitled (included those set forth in
the Financing Contract) including pursuant to the law.
13.6 Communications to the Company
The Constituent undertakes to notify, within 5 (five) Business Days
from the execution of this Instrument, the Company of the constitution of the
Pledge and take note and accept the provisions related to the transfer in favor
of the Bank of the right to receive the Dividends and exercise the voting rights
and the administrative rights of the Shares in the scenarios established in
Article 5 above.
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13.7 Severability
The circumstance that, at any time, one or several of the provisions
of this Instrument is found or becomes invalid, ineffective or not enforceable
will not impair the validity, effectiveness and enforceability of the other
provisions of this Instrument
14. GOVERNING LAW AND JURISDICTION
14.1 Governing law
This Instrument is governed by Italian law.
14.2 Jurisdiction
For any dispute arising from the interpretation, execution, performance or
cancellation of this Instrument or related thereto the Court of Milan will be
the only court competent, except for the right of the Bank to file lawsuits
against the Constituent before any other competent judicial authority.
Basel, June 28, 2005.
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SIGNATORIES
Constituent
OLIMPIA S.p.A.
______________________________________
Bank
BANCA MONTE DEI PASCHI DI SIENA S.p.A.
______________________________________
Depositary
BANCA MONTE DEI PASCHI DI SIENA S.p.A
______________________________________
ADDENDUM 1
DESCRIPTION OF THE FINANCING
Maximum amount: Euro 600,000,000
Borrower: OLIMPIA S.p.A.
Drawdown Period: from the Closing Date to the Final Due Date
Final due date the seventh anniversary of the Execution Date of the
Financing Contract
Interest rate: EURIBOR plus the Margin
Reimbursement: "revolving" at the end of every Interest Period, but by
and not after the Final Due Date