Exhibit 66
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)
Document of Pledge on Dematerialized Shares
TABLE OF CONTENTS
Page
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1. INTERPRETATION...........................................................................................1
2. GUARANTEE................................................................................................5
3. GUARANTEED OBLIGATIONS...................................................................................6
4. PERFECTING OF THE PLEDGE.................................................................................6
5. VOTING RIGHTS AND RELATED RIGHTS.........................................................................6
6. RIGHTS TO WARRANTS AND CONVERTIBLE BONDS.................................................................8
7. EXECUTION OF THE PLEDGE..................................................................................9
8. REPRESENTATIONS AND WARRANTIES..........................................................................10
9. COMMITMENTS OF THE CONSTITUENT..........................................................................10
10. EXTINCTION AND CANCELLATION OF THE PLEDGE...............................................................11
11. INDEMNITIES, FEES, COSTS AND EXPENSES...................................................................12
12. COMMUNICATIONS..........................................................................................13
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13. MISCELLANEOUS PROVISIONS................................................................................14
14. GOVERNING LAW AND JURISDICTION..........................................................................15
ii
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.
1.1 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:
(a) 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);
(b) occurrence of any other event of the Financing Contract that
causes the forfeiture ex lege of the Guaranteed Obligations; or
(c) 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.
"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.
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"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;
(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;
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(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.
"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).
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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:
I. 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
II. 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.
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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:
I. 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
II. 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.
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:
(a) to cause the occurrence of an Event of Default; or
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(b) 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.
(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:
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(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.
(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.
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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):
I. 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
II. 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:
(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; or
(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.
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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.
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;
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(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.
(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
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(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.
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.
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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/▇▇▇▇▇▇▇▇▇▇▇
(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.
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.
14
(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.
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.
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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