ACCOUNT AGREEMENT BETWEEN TELEFÓNICA DE ARGENTINA S.A. AND TELFISA GLOBAL B.V.
Exhibit
4.15
BETWEEN
TELEFÓNICA DE ARGENTINA S.A. AND TELFISA GLOBAL B.V.
Madrid, 28 de ▇▇▇▇▇ de
2008.
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(1)
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▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ representing TELFISA GLOBAL BV., a
company incorporated under the law of the Netherlands, having its
statutory seat in Amsterdam and registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, and who has authority to execute this
Agreement;
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and
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(2)
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▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ representing TELEFÓNICA DE ARGENTINA
S.A., whose head office is registered at Avda, Ingeniero Huergo
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, and who has authority
to execute this Agreement;
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RECITALS
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I.
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TELFISA GLOBAL B.V. and
TELEFÓNICA DE ARGENTINA
S.A. are subsidiaries of TELEFÓNICA, S.A., whose
head office is registered at ▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ and who holds
directly or indirectly the majority stake of these
companies.
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II.
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In
order to optimise the use of its economic resources and within an
integrated management of the treasury and finance of TELEFÓNICA S.A.’s group
of subsidiaries (hereinafter the Group or the Group Companies,
each separately
the Group Company), the parties agree to sign this Agreement
through which the aforementioned integrated management is
structured.
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III.
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In
accordance with the above and without prejudice that another more
appropriate agreement for the management of the Group’s treasury and
finance may be entered into in the future, the parties sign this Agreement
and agree to the following:
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1.
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PURPOSE
OF THE AGREEMENT
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1.1
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TELFISA GLOBAL BV and
TELEFÓNICA DE ARGENTINA
S.A. agree to set up an account system (the "Account") in which all
money placed by TELFISA
GLOBAL B.V. to TELEFÓNICA DE ARGENTINA S.A.
and vice versa (the "Placements") will be
recorded.
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1.2 The
Placements can be in US dollars.
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1.3.
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Additionally,
TELFISA GLOBAL,
B.V. and TELEFÓNICA DE ARGENTINA
S.A. agree that TELFISA GLOBAL, B.V.
will manage the following selected areas of TELEFÓNICA DE ARGENTINA
S.A.’s and any other Group Companies
treasury activities. For that purpose, TELFISA GLOBAL B.V.
shall be entitled, and is authorized by TELEFÓNICA DE ARGENTINA
S.A., to, inter alia:
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Redistribute
any balance recorded against and in favour of TELEFÓNICA DE ARGENTINA
S.A.
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Obtain
capital to finance TELEFÓNICA DE ARGENTINA
S.A.’s working capital from parties within or outside the
Group.
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Decide
on the method to be applied to the management of the balance recorded in
the Account against or in favour of TELEFÓNICA DE ARGENTINA S.A.
to the extent such method is in compliance with the terms and the
spirit of this Agreement.
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Take
any other actions considered necessary to achieve the fulfilment of this
Agreement.
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Use
any balance recorded in favour of TELEFÓNICA DE ARGENTINA
S.A. in short term
investments.
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2 ACCOUNT
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Any
Placements made by TELFISA GLOBAL B.V. to
TELEFÓNICA DE ARGENTINA
S.A. or by TELEFÓNICA DE ARGENTINA
S.A. to TELFISA
GLOBAL B.V. will be recorded in the Account made pursuant to Clause
1.2 above. Balances in the account will be made available on the drawdown
date provided that TELEFÓNICA DE ARGENTINA S.A. has received one (1)
Business Day prior the proposed drawdown date a duly completed and signed
“Advance Notice Form” from TELFISA GLOBAL B.V., or TELFISA GLOBAL B.V. has
received one (1) Business Days prior the proposed repayment date a duly
completed and signed “Repayment Notice Form” from
TELEFÓNICA DE ARGENTINA S.A.
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3 LIMITS
IN THE ACCOUNT
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3.1
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The
daily debit balance recorded against TELEFÓNICA DE ARGENTINA
S.A. in the Account shall not exceed USD 1,000 (US Dollars One
Thousand).
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3.2
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An
extract of the balance of the Account will be obtained daily to ensure
that TELEFÓNICA DE
ARGENTINA S.A. complies with Clause 3.1
above.
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3.3
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The
limit set out in Clause 3.1 may be amended if both parties agree to such
amendment in writing.
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3.4
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Should
TELEFÓNICA DE ARGENTINA
S.A. exceed the limit imposed on the Account pursuant to Clause 3.1
or 3.3 above, TELEFÓNICA
DE ARGENTINA S.A. authorises TELFISA GLOBAL B.V. to
apply all payments which according to clause 1.3 TELEFÓNICA DE ARGENTINA
S.A. receives from other companies in the Group to reduce the amount daily
owed by TELEFÓNICA DE
ARGENTINA S.A. to TELFISA GLOBAL
B.V.
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3.5.
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TELFISA GLOBAL B.V.
hereby agrees that any amount collected from TELEFÓNICA DE ARGENTINA
S.A. shall be placed in TELEFÓNICA, S.A., or in
any other subsidiary, or any holding thereto, with respect to which TELFISA GLOBAL B.V. has
a deposit for the same amount or higher which can be set off. In case
TELFISA GLOBAL
B.V. decides to make any other placement, it shall so notify TELEFÓNICA DE ARGENTINA
S.A. 2 (two) business days in advance so that TELEFÓNICA DE ARGENTINA
S.A. can decide to recover any balance of the account on its
favour. TELFISA GLOBAL
B.V. undertakes to furnish TELEFÓNICA DE ARGENTINA
S.A. with a copy of any financial statement within 10 (ten)
business days as from each issuance
date.
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4. INTEREST
RATE
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4.1
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The
Account, until it is closed or this Agreement is terminated in accordance
with Clauses 8 and 9 hereof, will accrue interest for each corresponding
Interest Period (as defined in Clause 6 below in accordance with the
following rate:
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a)
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Balances
in favour of TELFISA
GLOBAL B.V.: the interest rate applicable (the "Applicable Interest
Rate") shall be the Reference Interest Rate (as defined in Clause 5
below) plus a margin of 4 bp (according to the usual market practice), in
accordance with arms length
principle.
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b)
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Balances
in favour of TELEFÓNICA
DE ARGENTINA S.A.: the Applicable Interest Rate shall be the
Reference Interest Rate plus a margin of 4 bp (according to the usual
market practice), in accordance with arms length
principle.
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4.2
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For
each Interest Period the Applicable Interest Rate will be applied to the
balance recorded in the Account counting all natural days elapsed, and
using, as basis, a year of 360
days.
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4.3
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The
Applicable Interest Rate to be applied for each Interest Period will be
established by TELFISA
GLOBAL B.V. on the business day prior to the beginning of the
corresponding Interest Period, in accordance with Clauses 4 and 5 of this
Agreement.
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5.
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REFERENCE INTEREST
RATE
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The
reference interest rate (the "Reference Interest Rate") for
each Interest Period will be “1 Month Libor USD” defined as: “One month USD
Libor rate reflected on the Reuters screen “LIBOR01” at 11 a.m. two business
days prior to the beginning of the next Interest Period”.
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6.
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INTEREST PERIOD, ACCRUAL AND
SETTLEMENT OF INTEREST
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6.1
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Solely
in order to establish the Applicable Interest Rate, the duration period of
the Agreement will be divided into interest periods (each an "Interest Period") of one
month each, which shall begin on the first day of each month and end on
the last day of each month except for the first of such Interest Periods
which will start on the date of this Agreement and end on the last day of
the corresponding month.
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6.2
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The
balances in favour of TELEFÓNICA DE ARGENTINA S.A.
or TELFISA GLOBAL
B.V. recorded in the Account will accrue interest on a daily basis
at the Applicable Interest Rate.
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6.3
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On
a monthly basis, and coinciding with the closing of each month, the
Account will be settled and the accrued interest for the month will be
calculated, in accordance with Clauses 4 and 5. The resulting amount will
be then registered in the Account as the starting item of the new Interest
Period.
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7.
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DURATION AND
MATURITY
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This
Agreement will continue in force from the date hereof to 31/12/09.
On
termination of the Agreement, the final closing and settlement of the Account
will be executed, at which time TELFISA GLOBAL B.V. will have
to pay the TELEFÓNICA DE
ARGENTINA S.A. the resulting amount referred in clause 12 in favour of
the TELEFÓNICA DE ARGENTINA
S.A. and TELEFÓNICA DE
ARGENTINA S.A. will have to pay TELFISA GLOBAL B.V. the
resulting amount referred in clause 11 in favour of TELFISA GLOBAL B.V. within 5
(five) days from the date on which the Account is closed, plus accrued interest
up to the date of termination of the Agreement; the contractual relationship
between the parties pursuant to this Agreement will only terminate once such
payment has been made.
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8.
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ACCELERATION AND
CANCELLATION
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The
parties agree that this Agreement will automatically terminate should TELEFÓNICA, S.A. lose the
management of and/or control of TELFISA GLOBAL B.V. and/or
TELEFÓNICA DE ARGENTINA
S.A. Should this occur, any Placements provided under this agreement
becomes due and payable and the Account will be closed and settled following the
procedure set out in Clause 7 above; Clause 10 shall not apply.
This
Agreement can also be terminated with the mutual consent of both parties. In
this case, the final closing and settlement of the Account will be executed in a
manner agreed upon by the parties.
This
Agreement can also be terminated by either party with immediate effect in case
that one of the following events occurs:
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a)
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TELEFÓNICA DE ARGENTINA S.A.
or TELFISA GLOBAL
B.V. fails to pay any sum when due hereunder or to comply promptly
with any other term hereof; provided however, that the party breaching
this obligation does not remedy the breach after the written request of
the other party to do so within 20 (twenty) business days upon such
request;
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b)
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TELEFÓNICA DE ARGENTINA S.A.
or TELFISA GLOBAL
B.V. announce or admit in writing its inability to pay its debts as
the mature, and/or;
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c)
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Any
liquidator, trustee in bankruptcy, judicial custodian, complulsory manager
receiver, administrative receiver or the like is appointed in respect of
TELEFÓNICA DE ARGENTINA
S.A. or TELFISA
GLOBAL, B.V.
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Should
this Agreement be terminated based in sections (a, b and c) above, the final
closing and settlement of the Account will be executed following the procedure
set out in Clause 7 above. Such settlement shall include any amount owed, as
damage or losses, by the infringing party. If any amount owed by one party to
the other because of the termination of the Agreement is not paid within the
period established in Clause 7, such amount will accrue interest at the Penalty
Interest Rate set out in Clause 9, until the moment the owed amounts are fully
paid.
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9.
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PENALTY
INTERESTS
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Any
amounts owed by TELFISA GLOBAL
B.V. or TELEFÓNICA DE
ARGENTINA S.A. which are not settled when due, will accrue interest, at
the Interest Rate increased by 2 (two) percentage points, until the moment the
owed amounts are fully paid (the “Penalty Interest
Rate”).
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10.
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ALLOCATION OF
PAYMENTS
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Any
payment made by TELFISA
GLOBAL B.V. or TELEFÓNICA DE ARGENTINA S.A.
in compliance with this Agreement will be allocated in the
following order:
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1.
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Expenses
and commissions (should these
exist).
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2.
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Penalty
Interest Rate (should any be
outstanding).
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3.
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Accrued
interest.
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4.
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Principal.
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11.
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CALCULATION AND SETTLEMENT OF
DEBT
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Should
TELEFÓNICA DE ARGENTINA S.A.
or TELFISA GLOBAL B.V.
initiate the procedure to retrieve the principal, interest and any other
expenses it is owed, the parties agree that the procedure to settle the
outstanding debt will be carried out by TELFISA GLOBAL B.V. who shall
issue the corresponding certificate stating the balance recorded in favour of
TELEFÓNICA DE ARGENTINA S.A.
or in its favour in the Account.
This
certificate must be prepared in a manner agreed upon by the
parties.
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12.
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SET
OFF
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In case
the final closing balance of the Account is due and payable, any party may set
off such balance of the Account that is in favour of the other party,
against any part of the present and future obligations of the other party to
such party (the Obligations), including without limitation any conditional or
contingent Obligations, whatever their nature irrespective of the currency in
which the final closing balance and Obligations are denominated. In case of
conditional or contingent Obligations, the balance of the Account will be set
off when such obligations are due and payable.
13. NOTIFICATIONS
Any
notifications, summons or communications that may take place pursuant to this
Agreement, must be made in writing, in order to be valid and effective, to the
following addresses of the parties:
TELFISA GLOBAL
B.V.
Attn.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇
Strawinskylaan
1665; tower D; ▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ (01)
Fax: ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
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TELEFÓNICA
DE ARGENTINA S.A.
ATN. ▇▇▇▇ ▇’▇▇▇▇▇▇▇▇ / ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ (▇▇▇▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
- ▇▇▇▇▇▇▇▇▇
Tel.: ▇▇▇
▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇
▇ ▇▇▇▇ ▇▇▇▇
Any
amendment to the addresses of the parties as they appear in this Agreement shall
be communicated to the parties in writing.
14. TAXES
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14.1
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Any
taxes that may arise as a result of the execution or resolution of this
Agreement will be covered by the parties as stated by the relevant
law.
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15.
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ASSIGNMENT
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None of
the parties shall, without the prior written consent of the other party, be
entitled to assign, transfer or novate all or any part of its rights or
obligations or both hereunder.
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16.
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LAW
AND JURISDICTION
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Dutch law
governs this Agreement. The parties submit to the exclusive jurisdiction of the
relevant court in Amsterdam should any actions or summons arise in relation to
this Agreement.
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17.
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ADJUSTMENT
AND SEVERABILITY
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17.1
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The
parties are aware that jurisprudence on cash-management systems is
continuously evolving. The parties shall, whenever and as often as
reasonably requested by either party, negotiate in good faith any
adjustments and execute all further acts as are necessary or appropriate
in order to ensure the purpose of this
Agreement.
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17.2
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Should
any provision of this Agreement be deemed or held to be wholly or partly
invalid, ineffective or unenforceable, this shall not affect the validity,
effectiveness or enforceability of the remainder hereof. The parties
hereby agree to replace any invalid, ineffective, or unenforceable
provision by a provision, negotiated in good faith, that achieves as
closely as possible the original commercial intention of the parties. The
same shall apply to omissions.
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