Exhibit 59
EXECUTION VERSION
AGREEMENT
Dated 12TH JANUARY, 2005
'E'2,400,000,000
REVOLVING CREDIT FACILITY
FOR
OLIMPIA S.p.A.
ARRANGED BY
Banca Intesa S.p.A., MCC S.p.A., UniCredit Banca Mobiliare S.p.A., Calyon S.A.
Succursale ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank International Limited, Milan Branch
and Societe Generale, Succursale di Milano
as Mandated Lead Arrangers
WITH
Banca di Roma S.p.A.
as Facility Agent
CONTENTS
Clause Page
1. Interpretation 27
2. Facility 39
3. Purpose 41
4. Conditions Precedent 41
5. Utilisation - Loans 42
6. Repayment 44
7. Prepayment, Cancellation and Collateral 44
8. Interest 50
9. Terms 51
10. Market Disruption 52
11. Taxes 53
12. Increased Costs 55
13. Mitigation 56
14. Payments 57
15. Representations 58
16. Information Covenants 61
17. Financial Covenants 63
18. General Covenants 63
19. Events of ▇▇▇▇▇▇▇ ▇▇
▇▇. The Administrative Parties 68
21. Evidence and Calculations 73
22. Fees 74
23. Indemnities and Break Costs 74
24. Expenses 76
25. Amendments and Waivers 76
26. Changes to the Parties 78
27. Disclosure of Information 81
28. set-off 82
29. Pro Rata Sharing 82
30. Severability 83
31. Counterparts 84
32. Notices 84
33. Language 85
34. Governing Law 85
35. Enforcement 86
Schedule
Original Parties..........................................................87
Conditions Precedent Documents............................................88
Form of Request...........................................................90
Form of Transfer Certificate..............................................91
Form of Compliance Certificate............................................93
Security Agreements.......................................................94
Release Certificate.......................................................95
Signatories 96
THIS AGREEMENT is dated 12TH January, 2005
BETWEEN:
(15) OLIMPIA S.p.A. (the Company);
(16) Banca Intesa S.p.A., MCC S.p.A., UniCredit Banca Mobiliare S.p.A.,
Calyon S.A. Succursale ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank International
Limited, Milan Branch and Societe Generale, Succursale di Milano as
arrangers (in this capacity the Mandated Lead Arrangers);
(17) Banca Intesa S.p.A., MCC S.p.A., and Unicredit Banca Mobiliare S.p.A as
global coordinators (in this capacity the Global Coordinators);
(18) THE FINANCIAL INSTITUTIONS listed in Allegato 1 (Original Parties) as
original lenders (the Original Lenders); and
(19) Banca di Roma S.p.A. as facility agent (in this capacity the Facility
Agent).
IT IS AGREED as follows:
15. INTERPRETATION
15.1 Definitions
In this Agreement:
Administrative Party means a Mandated Lead Arranger or the Facility
Agent.
A Existing Indebtedness means indebtedness incurred under:
(e) a 'E'1,800,000,000 revolving facility agreement
entered into by the Company on 30th October, 2001
with INTESABCI S.p.A. and UNICREDIT BANCA MOBILIARE
S.p.A. as Mandated Lead Arrangers and Bookrunners and
BANCA DI ROMA S.p.A. as Facility Agent, Security
Agent and Collateral Monitoring Agent (the October
Facility); and
(f) a 'E'200,000,000 revolving credit facility entered
into by the Company on 19th August, 2004 with
Mediobanca S.p.A.; and
(g) a 'E'100,000,000 revolving credit facility entered
into by the Company on 19th December, 2003 with
Banca di Roma S.p.A.
Affiliate means a Subsidiary or a Holding Company of a person or any
other Subsidiary of that Holding Company.
Antonveneta Loan Agreement means the 'E'180,759,915 loan agreement
entered into by the Company on 3rd October, 2001 with Banca Antoniana
Popolare Veneta S.c.a.r.l..
Availability Period means:
(h) when designated Tranche A, the period from and
including the Closing Date to and including the date
falling two months after the Closing Date;
(i) when designated Tranche B, the period from and
including the date of this Agreement to and including
the Final Maturity Date (subject to the Term selected
being one, two, three or six months or such other
period agreed by the Company and the Lenders subject
always to such period not ending after the Final
Maturity Date); and
(j) when designated Tranche C, the period from and
including the Closing Date to and including the
Expiry Date.
Break Costs means the amount (if any) which a Lender is entitled to
receive under Clause 37.3 (Break Costs) as compensation if any part of
a Loan or overdue amount is repaid or prepaid on a date other than the
last day of the Term applicable to that amount.
Business Day means a day (other than a Saturday or a Sunday) on which
banks are open for general business in London and Milan and which is
also a TARGET Day.
Calculation Date means the first Business Day of each month following
the date of this Agreement.
Cash means cash, including cash in a current bank account:
(a) that is not subject to a Security Interest other than
a Security Interest under a Security Agreement, or
(b) the repayment of such cash is not contingent on the
satisfaction of any condition relating to the
performance by the Company of its obligations.
Cash Deposits means time deposits of cash for a term not exceeding 90
days with a bank or financial institution with a short term rating of
at least A2 by Standard and Poor's Corporation or P2 granted by ▇▇▇▇▇'▇
Investors Services, Inc and to which the Company alone is beneficially
entitled and so long as (i) such cash is not subject to a Security
Interest other than a Security Interest under a Security Agreement or
(ii) the repayment of such cash is not contingent on the satisfaction
of any condition relating to the performance by the Company of its
obligations.
Cash Equivalents means Cash, Cash Deposits and/or Marketable
Securities.
C Existing Indebtedness means indebtedness incurred under:
(k) a 'E'250,000,000 bond issued by the Company on 20th
November, 2001 to Monte dei Paschi di Siena S.p.A.;
and
(l) a 'E'1,032,920,000 bond issued by the Company on 5th
October, 2001 to ▇▇▇▇ ▇.▇., of which approximately
'E'2.8 million, as a nominal value, was still
outstanding as at 30 September 2004.
Closing Date means the date on which the first utilisation is made
under the Facility.
Collateral means the TI Shares, the TI Convertible Bonds, the TI
Warrants and/or the Cash Equivalents.
Collateral Value means the aggregate value of the TI Shares, the TI
Convertible Bonds, the TI Warrants and the Cash Equivalents secured in
favour of the Lenders from time to time pursuant to the terms of a
Security Agreement. Other than during the negotiation period referred
to in Clause 21.3(a)(ii)(C) (Mandatory prepayment - change of control),
such aggregate value shall be calculated as follows:
(m) the value of the TI Shares shall be calculated using
the price determined monthly on the Calculation Date
by the Facility Agent by reference to the average
quoted price (prezzo ufficiale) on the Milan stock
exchange of Telecom Italia S.p.A. ordinary shares for
the preceding 25 consecutive Trading Days;
(n) the value of the TI Convertible Bonds shall be
calculated using the price determined monthly on the
Calculation Date by the Facility Agent by reference
to the average quoted price (prezzo ufficiale) of TI
Convertible Bonds on the Milan stock exchange for the
preceding 25 consecutive Trading Days;
(o) the value of the TI Warrants shall be calculated
using the price determined monthly on the Calculation
Date by the Facility Agent by reference to the
average quoted price (prezzo ufficiale) of TI
Warrants on the Milan stock exchange for the
preceding 25 consecutive Trading Days;
(p) the value of the Marketable Securities shall be
calculated using the price determined monthly on the
Calculation Date by the Facility Agent by reference
to the average quoted price of each Marketable
Security on the relevant Italian market for the
preceding 25 Business Days; and
(q) the value of the Cash and Cash Deposits shall be
calculated by reference to the principal amount of
the Cash or Cash Deposit plus accrued interest in
each case calculated on the Calculation Date,
it being agreed that (i) if there is a suspension from trading of a
security (the Suspended Security) of not more than seven Trading or
Business Days, as the case may be, and accordingly the quoted price for
the preceding 25 consecutive Trading Days or, in the case of paragraph
(d) above, Business Days, is not available, the value of the Suspended
Security shall, in relation to any affected Calculation Date, be
calculated by reference to the last 25 Trading Days or Business Days
(as the case may be) on which the Suspended Security was not suspended
from trading; or (ii) where the suspension from trading of a Suspended
Security is for a period of greater than seven Trading or Business
Days, as the case may be, the value of the Suspended Security shall be
calculated by an independent expert nominated by the Facility Agent
after consultation with the Company.
Commitment means:
(r) for an Original Lender:
(1) the amount set out opposite its name in the
fifth column of Allegato 1 (Original
Parties); and
(2) when designated Tranche A, Tranche B or
Tranche C, the amount set out opposite its
name in the second, third or fourth column
(respectively) of Allegato 1 (Original
Parties),
in each case under the heading Commitments and the amount of
any other Commitment it acquires under this Agreement; and
(s) for any other Lender, the amount of any Commitment it
acquires under this Agreement,
to the extent not cancelled, transferred or reduced under this
Agreement.
Compliance Certificate means a certificate substantially in the form of
Allegato 5 (Form of Compliance Certificate) setting out the
calculations of the financial covenants.
Demerger means a demerger or direct transfer to, or assumption by, Hopa
or an Affiliate of Hopa of a percentage of the assets and liabilities
of the Company equal to the aggregate shareholding held by Hopa and/or
any Affiliate of Hopa in the Company at the relevant time.
Edizione Finance International S.A. means Edizione Finance
International S.A., having its registered office in ▇▇▇▇▇ ▇▇ ▇'▇▇▇▇▇▇
▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
Edizione Holding S.p.A. means Edizione Holding S.p.A. having its
registered office in ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇.
EURIBOR means for a Term of any Loan or overdue amount in euro:
(t) the applicable Screen Rate; or
(u) if no Screen Rate is available for that Term of that
Loan or overdue amount, the arithmetic mean (rounded
upward to four decimal places) of the rates as
supplied to the Facility Agent at its request quoted
by the Reference Banks to leading banks in the
European interbank market,
as of 11.00 a.m. (Milan time) on the Rate Fixing Day for the offering
of deposits in euro for a period comparable to that Term.
euro means the single currency of the Participating Member States.
Event of Default means an event specified as such in Clause 33 (Events
of Default).
Expiry Date means the 20 November 2006 or any other later date agreed
by the Company with holders of the MPS Bond as the maturity date for
that bond provided that under no circumstances shall such later date
fall after 20 May 2007.
Facility means:
(v) the Tranche A revolving credit facility referred to
in Clause 16.1(a) (Facility);
(w) the Tranche B revolving credit facility referred to
in Clause 16.1(b) (Facility); and
(x) the Tranche C revolving credit facility referred to
in Clause 16.1(c) (Facility).
Facility Office means the office(s) notified by a Lender to the
Facility Agent:
(y) on or before the date it becomes a Lender; or
(z) by not less than five Business Days' notice,
as the office(s) through which it will perform its obligations under
this Agreement.
Fee Letter means any letter entered into by reference to this Agreement
between one or more Administrative Parties and the Company setting out
the amount of certain fees referred to in this Agreement.
Final Maturity Date means the fifth anniversary of the date of this
Agreement.
Finance Document means:
(aa) this Agreement;
(bb) any Security Agreement;
(cc) any other document designated in writing as such by
both the Facility Agent and the Company.
Finance Party means a Lender or an Administrative Party.
Financial Indebtedness means without double counting and excluding
shareholders' loans, any indebtedness of the Company in respect of:
(dd) borrowed money;
(ee) any amount raised pursuant to any note purchase
facility or the issue of bonds, notes, debentures,
loan stock;
(ff) the amount of any liability in respect of any lease
or hire purchase contract which would, in accordance
with GAAP, be treated as a finance or capital lease;
(gg) any derivative transaction not entered into in
connection with the hedging strategy of the Company
(and when calculating the value of any derivative
transaction, only the marked to market value shall be
taken into account);
(hh) receivables sold or discounted (other than any
receivables to the extent they are sold or discounted
on a non-recourse basis);
(ii) any amount raised under any other transaction
(including any forward sale or purchase agreement)
required by GAAP to be shown as a borrowing in the
"Civilistico" of the Company; and
(jj) financial guarantees.
GAAP means the accounting principles issued in Italy by ▇▇▇▇▇▇▇▇▇
Nazionale dei Dottori Commercialisti e dei Ragionieri or, in their
absence, the accounting principles issued by the International
Accounting Standards Board or any other accounting principles generally
accepted in Italy.
Holding Company of any other person, means a company in respect of
which that other person is a Subsidiary.
Holinvest means Holinvest S.p.A., having its registered office in ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇.
Hopa means Hopa S.p.A., having its registered office in ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇.
Imposta Sostitutiva means the imposta sostitutiva provided by article
15 e.s. of the Italian Presidential Decree No. 601/1973.
Increased Cost means:
(kk) an additional or increased cost; or
(ll) a reduction of an amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party but only to the extent
attributable to that Finance Party having entered into this Agreement
or funding or performing its obligations under this Agreement.
Interbanca Loan Agreement means the 'E'77,468,534 loan agreement
entered into by the Company on 3rd October, 2001 with Interbanca
S.p.A..
Lender means:
(mm) an Original Lender; or
(nn) any person which becomes a Lender after the date of
this Agreement.
Loan means the principal amount of each borrowing under this Agreement
or the principal amount outstanding of that borrowing.
Majority Lenders means, at any time, Lenders:
(oo) whose share in the outstanding Loans and whose
undrawn Commitments then aggregate 51 per cent. or
more of the aggregate of all the outstanding Loans
and the undrawn Commitments of all the Lenders;
(pp) if there is no Loan then outstanding, whose undrawn
Commitments then aggregate 51 per cent. or more of
the Total Commitments; or
(qq) if there is no Loan then outstanding and the Total
Commitments have been reduced to zero, whose
Commitments aggregated 51 per cent. or more of the
Total Commitments immediately before the reduction.
Margin means the rate per annum calculated in accordance with Clause
22.3 (Margin adjustments).
Marketable Securities means debt securities denominated in euro issued
or guaranteed by the government or central bank of, the United States,
Japan, Germany, the United Kingdom, Italy, Canada or France which are
not convertible into any other form of security, rated at least AA (by
Standard & Poor's Ratings Services) or equivalent and which have a
maturity not exceeding 12 months and which are not subject to a
Security Interest other than a Security Interest under a Security
Agreement.
Material Adverse Effect means a material adverse effect on the
financial condition of the Company which will cause the Company to be
unable to perform its payment obligations under this Agreement.
Maturity Date means the last day of the Term of a Loan.
MPS Bond means the 'E'250,000,000 bond convertible into Telecom Italia
Mobile S.p.A. shares issued by the Company on 14 November 2001 and
subscribed by Monte dei Paschi di Siena S.p.A..
MPS Loan Agreement means the 'E'516,456,000 loan agreement entered into
by the Company on 3rd October, 2001 with Monte dei Paschi di Siena
S.p.A..
Net Financial Position means the amount set out as "posizione
finanziaria ▇▇▇▇▇" in financial statements ("bilancio civilistico") of
the Company determined (subject to Clause 30.1) in accordance with GAAP
as at December 2004.
Original Financial Statements means the audited financial statements of
the Company for the year ended 31 December 2003.
Participating Member State means a member state of the European
Communities that adopts or has adopted the euro as its lawful currency
under the legislation of the European Community for Economic and
Monetary Union.
Party means a party to this Agreement.
Pirelli & C. S.p.A. means Pirelli & C. S.p.A., having its registered
office in ▇▇▇ ▇. ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇.
Permitted Transferee means:
(rr) in the case of Pirelli & C. S.p.A. or any Permitted
Transferee of Pirelli & C. S.p.A., any Subsidiary of
Pirelli & C. S.p.A.; and
(ss) in the case of Edizione Finance International S.A. or
any Permitted Transferee of Edizione Finance
International S.A., any company that is, or is a
wholly owned Subsidiary of, Edizione Holding S.p.A.
Pro Rata Share means:
(tt) for the purpose of determining a Lender's share in a
utilisation of the Facility, the proportion which its
Commitment bears to the Total Commitments; and
(uu) for any other purpose on a particular date:
(1) the proportion which a Lender's share of the
Loans (if any) bears to all the Loans;
(2) if there is no Loan outstanding on that
date, the proportion which a Lender's
Tranche A Commitment, Tranche B Commitment
or Tranche C Commitment bears respectively
to the Total Tranche A Commitments, the
Total Tranche B Commitments or the Total
Tranche C Commitments (as the case may be)
on that date; or
(3) if the Total Commitments have been
cancelled, the proportion which a Lender's
Commitment bore to the Total Commitments
immediately before being cancelled.
Qualifying Lender means a Lender which at that time:
(vv) is authorised or licensed to carry out banking
activities within the territory of the Republic of
Italy, and qualifies as a "banca autorizzata in
Italia" pursuant to paragraph 2(d) of legislative
Decree No. 385 dated 1st September, 1993 and lends
through a Facility Office in the Republic of Italy;
or
(ww) is a branch office in the Republic of Italy of an
institution which is authorised or licensed in a
country which is a member state of the European Union
to carry out banking activities; and
in each case is deemed the ultimate beneficial owner for tax purposes
of any payments received under the Finance Documents and is tax
resident in the Republic of Italy pursuant to applicable Italian tax
laws for the purposes of payments received under the Finance Documents
and any such payment is booked in its accounting records and considered
as its own business income ("reddito d'impresa") according to Article
81 or 152(1) as the case may be of Presidential Decree No. 917 of 22nd
December, 1986 as amended and substituted from time to time.
Rate Fixing Day means the second TARGET Day before the first day of a
Term.
Reference Banks means the Facility Agent, Unicredit Banca d'Impresa
S.p.A., JPMorgan Chase Bank and Societe Generale S.A. and any other
bank or financial institution appointed as such by the Facility Agent
under this Agreement.
Release Certificate means a certificate executed and delivered by the
Company substantially in the form of Allegato 7 (Release Certificate).
Repeating Representations means the representations which are deemed to
be repeated under Clause 29.13 (Times for making representations).
Request means a request for a Loan, substantially in the form of
Allegato 3 (Form of Request).
Rollover Loan means one or more Loans:
(xx) made or to be made on the same day that a maturing
Loan is due to be repaid;
(yy) the aggregate amount of which is equal to or less
than the maturing Loan; and
(zz) made or to be made for the purpose of refinancing a
maturing Loan.
Screen Rate means the percentage rate per annum determined by the
Banking Federation of the European Union, for the relevant currency and
Term displayed on Telerate Screen page 248 or if such page is not
available on the relevant Reuters page. If the relevant pages are
replaced or the service ceases to be available, the Facility Agent (in
agreement with the Company acting reasonably and after consultation
with the Lenders) may specify another page or service displaying the
appropriate rate. If no such page or service displays an appropriate
rate or agreement is not reached within 3 Business Days, the rate will
be established by the Reference Banks.
Security Agreement means each security agreement listed in Allegato 6
(Security Agreements) and any other security agreement required to be
entered into in accordance with the terms of this Agreement.
Security Interest means any mortgage, pledge, lien, charge, or other
security interest securing any obligation of any person.
Subsidiary means an entity of which a person has direct or indirect
control or owns directly or indirectly more than 50 per cent. of the
voting capital or similar right of ownership and controlling an entity
for this purpose means holding more than 50 per cent. of its voting
rights.
Super Majority Lenders means, at any time, Lenders:
(aaa) whose share in the outstanding Loans and whose
undrawn Commitments then aggregate 66 2/3 per cent.
or more of the aggregate of all the outstanding Loans
and the undrawn Commitments of all the Lenders;
(bbb) if there is no Loan then outstanding, whose undrawn
Commitments then aggregate 66 2/3 per cent. or more
of the Total Commitments; or
(c) if there is no Loan then outstanding and the Total Commitments
have been reduced to zero, whose Commitments aggregated 66 2/3
per cent. or more of the Total Commitments immediately before
the reduction.
TARGET Day means a day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer payment system is open for the
settlement of payments in euro.
Tax means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
Tax Deduction means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
Tax Payment means a payment made by the Company to a Finance Party in
any way relating to a Tax Deduction or under any indemnity given by the
Company in respect of Tax under any Finance Document.
Telecom Italia S.p.A. means Telecom Italia S.p.A., having its
registered office in ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇.
Term means each period determined under this Agreement by reference to
which interest on a Loan or an overdue amount is calculated.
TI Convertible Bonds means debt securities issued by Telecom Italia
S.p.A. and listed on the Milan stock exchange that are freely
convertible into ordinary shares in the capital of Telecom Italia
S.p.A..
TI Shares means ordinary issued and voting shares in Telecom Italia
S.p.A..
TI Warrants means warrants for the purchase or subscription of ordinary
shares in the capital of Telecom Italia S.p.A. listed on the Milan
Stock Exchange.
Total Commitments means:
(ccc) the aggregate of the Commitments of all the Lenders,
set out in the fifth column of Allegato 1 (Original
Parties) under the heading Total Commitments; and
(ddd) when designated Tranche A, Tranche B or Tranche C,
the aggregate of the Commitments of all the Lenders
set out in the second, third or fourth column
(respectively) of Allegato 1 (Original Parties) under
the heading Total Commitments.
Total Outstandings means at any time, the aggregate of all outstanding
Loans, then outstanding.
Trading Days means a day on which the Milan stock exchange is open for
trading.
Tranche A means the tranche described Clause 16.1(a) (Facility).
Tranche B means the tranche described in Clause 16.1(b) (Facility).
Tranche C means the tranche described in Clause 16.1(c) (Facility).
Transfer Certificate means a certificate, substantially in the form of
Allegato 4 (Form of Transfer Certificate) or any other form agreed
between the Facility Agent and the Company.
Utilisation Date means each date on which the Facility is utilised.
VTL means, on any date, the percentage determined by the following
formula:
CV
--------------- x 100
TO
where:
CV means the Collateral Value of the Collateral secured in favour of
the Lenders under a Security Agreement on that date taking into account
any additions or releases of Collateral pursuant to a Security
Agreement on that date; and
TO means the Total Outstandings on that date taking into account any
proposed utilisations on that date and any repayments and prepayments
due to be made on that date.
15.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) an amendment includes a supplement, novation, restatement or
re-enactment and amended will be construed accordingly;
(ii) assets includes properties, revenues and rights which are
treated as assets pursuant to GAAP;
(iii) an authorisation includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or
notarisation;
(iv) an obligation to consult means to inform and discuss, but
shall under no circumstances mean that any decision to be made
following consultation is subject to approval or agreement;
(v) indebtedness includes any unconditional obligation (whether
incurred as principal or as surety) for the payment or
repayment of money;
(vi) know your customer requirements are the identification checks
that a Finance Party requests in order to meet its obligations
under any applicable law or regulation to identify a person
who is (or is to become) its customer;
(vii) a person includes any individual, firm, company, corporation,
unincorporated association or body (including a partnership,
trust, joint venture or consortium), government, state,
agency, organisation or other entity whether or not having
separate legal personality;
(viii) a regulation includes any regulation, rule, official directive
or guideline (whether or not having the force of law but, if
not having the force of law, being of a type with which any
person to which it applies is accustomed to comply) of any
governmental, inter-governmental or supranational body,
agency, department or regulatory, self-regulatory or other
authority or organisation;
(ix) a currency is a reference to the lawful currency for the time
being of the relevant country;
(x) an Event of Default being outstanding or continuing means that
it has not been remedied or waived;
(xi) a provision of law is a reference to that provision as
extended, applied, amended or re-enacted and includes any
subordinate legislation;
(xii) a Clause, a Subclause or a Schedule is a reference to a clause
or subclause of, or a schedule to, this Agreement;
(xiii) a Party or any other person includes its successors in title,
permitted assigns and permitted transferees;
(xiv) a Finance Document or another document is a reference to that
Finance Document or other document as amended; and
(xv) a time of day is a reference to Milan time.
(b) Unless the contrary intention appears, a reference to a month or months
is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month
or the calendar month in which it is to end, except that:
(i) if the numerically corresponding day is not a Business Day,
the period will end on the next Business Day in that month (if
there is one) or the preceding Business Day (if there is not);
(ii) if there is no numerically corresponding day in that month,
that period will end on the last Business Day in that month;
and
(iii) notwithstanding subparagraph (i) above, a period which
commences on the last Business Day of a month will end on the
last Business Day in the next month or the calendar month in
which it is to end, as appropriate.
(c) Unless expressly provided to the contrary in a Finance Document, a
person who is not a party to a Finance Document may not enforce any of
its terms under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ and,
notwithstanding any term of any Finance Document, no consent of any
third party is required for any variation (including any release or
compromise of any liability) or termination of any Finance Document.
(d) Unless the contrary intention appears:
(i) a reference to a Party will not include that Party if it has
ceased to be a Party under this Agreement;
(ii) a word or expression used in any other Finance Document or in
any notice given in connection with any Finance Document has
the same meaning in that Finance Document or notice as in this
Agreement; and
(iii) any obligation of the Company under the Finance Documents
which is not a payment obligation remains in force for so long
as any payment obligation of the Company is or may be
outstanding under the Finance Documents.
(e) The headings in this Agreement do not affect its interpretation.
15.3 Commitment references
References to the Commitment of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank International
Limited, Milan Branch in relation to Tranche A, Tranche B and Tranche
C, shall be construed as references to the aggregate Commitment in
relation to Tranche A, Tranche B and Tranche C of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
International Limited, Milan Branch and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ European
Funding, Inc. (in such
proportions as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank International Limited notifies to
the Facility Agent from time to time) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ European
Funding, Inc. is a party as a Lender to give effect to such Commitment
(as so notified).
16. FACILITY
16.1 Facility
Subject to the terms of this Agreement, the Lenders make available to
the Company the following revolving credit facilities:
(a) Tranche A: a revolving credit facility under which the Lenders
shall when requested by the Company pursuant to a Request,
make:
(i) Loans during the Tranche A Availability Period or
pursuant to Clause 16.2(a) (Additional Borrowings);
and
(ii) Rollover Loans from and including the date of this
Agreement to and including the Final Maturity Date,
in each case under Tranche A denominated in euros in an
aggregate principal amount not exceeding the Total Tranche A
Commitments;
(b) Tranche B: a revolving credit facility under which the Lenders
shall when requested by the Company pursuant to a Request,
make:
(i) Loans during the Tranche B Availability Period; and
(ii) Rollover Loans from and including the date of this
Agreement to and including the Final Maturity Date,
in each case under Tranche B denominated in euros in an
aggregate principal amount not exceeding the Total Tranche B
Commitments;
(c) Tranche C: a revolving credit facility under which the Lenders
shall when requested by the Company pursuant to a Request,
make:
(i) Loans during the Tranche C Availability Period or
pursuant to Clause 16.2(b) (Additional Borrowings);
and
(ii) Rollover Loans from and including the date of this
Agreement to and including the Final Maturity Date,
in each case under Tranche C denominated in euros in an
aggregate principal amount not exceeding the Total Tranche C
Commitments.
16.2 Additional Borrowings
(a) Any amount of a Tranche A Loan prepaid in accordance with Clause 21.3
(Mandatory prepayment - change of control), but only to the extent that
(i) the obligation to prepay arose as a result of an event set out in
Clause 21.3(a)(i), 21.3(a)(iii) and 21.3(a)(iv) occurring; (ii) such
event has been remedied and (iii) the remedy was effected within three
months of the underlying event occurring, Clause 21.4 (Mandatory
prepayment for VTL requirement) or Clause 7.5 (Voluntary prepayment) or
repaid on the last day of its Term other than to the extent that a
Rollover Loan refinanced it or as a result of a mandatory prepayment
under Clauses 21.1 (Mandatory prepayment - illegality), 21.2 (Mandatory
Prepayment - Unlawfulness) or Clause 21.3 (Mandatory prepayment -
change of control) (other than in the circumstances set out above) may
(subject to the conditions precedent to utilisation set-out in this
Agreement and to the amount reborrowed not exceeding the amount so
prepaid or repaid) be reborrowed in whole or in part at any time up to
and including the Final Maturity Date (subject always to the Term
selected being 1, 2, 3 or 6 months or such other period as the Company
and the Lenders agree and provided always that such period does not end
after the Final Maturity Date) provided that any such Loan is utilised
either (a) to purchase TI Shares or (b) for other general corporate
purposes consistent with the object of the Company as detailed in
section 2 of the by laws of the Company in force as at 4th November
2004.
(b) Any amount of a Tranche C Loan prepaid in accordance with Clause 21.3
(Mandatory prepayment - change of control), but only to the extent that
(i) the obligation to prepay arose as a result of an event set out in
Clause 21.3(a)(i), 21.3(a)(iii) and 21.3(a)(iv) occurring, (ii) such
event has been remedied and (iii) the remedy was effected within three
months of the underlying event occurring, Clause 21.4 (Mandatory
prepayment for VTL requirement) or Clause 7.5 (Voluntary prepayment) or
repaid on the last day of its Term other than to the extent that a
Rollover Loan refinanced it or as a result of a mandatory prepayment
under Clauses 21.1 (Mandatory prepayment - illegality), 21.2 (Mandatory
Prepayment - Unlawfulness) or Clause 21.3 (Mandatory prepayment -
change of control) (other than in the circumstances set out above) may
(subject to the conditions precedent to utilisation set-out in this
Agreement and to the amount reborrowed not exceeding the amount so
prepaid or repaid) be reborrowed in whole or in part at any time up to
and including Final Maturity Date (subject always to the Term selected
being 1, 2, 3 or 6 months or such other period as the Company and the
Lenders agree and provided always that such period does not end after
the Final Maturity Date) provided that any such Loan is utilised either
(a) to purchase TI Shares or (b) for other general corporate purposes
consistent with the object of the Company as detailed in section 2 of
the by laws of the Company in force as at 4th November 2004.
16.3 Nature of a Finance Party's rights and obligations
Unless all the Finance Parties and the Company agree otherwise:
(a) The obligations of a Finance Party under the Finance Documents
are several;
(b) failure by a Finance Party to perform its obligations does not
affect the obligations of any other Party under the Finance
Documents;
(c) no Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents;
(d) the rights of a Finance Party under or in connection with the
Finance Documents are separate and independent rights;
(e) a Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights; and
(f) any debt arising under the Finance Documents to a Finance
Party is a separate and independent debt.
17. PURPOSE
17.1 Purpose
(a) The proceeds of Tranche A shall solely be utilised: (i) to refinance in
full the A Existing Indebtedness; and (ii) in the circumstances
described in Clause 16.2(a), to finance the purchase of TI Shares, and
for other general corporate purposes consistent with the object of the
Company as detailed in section 2 of the by-laws of the Company in force
as at 4th November, 2004.
(b) The proceeds of Tranche B shall solely be utilised for discharging
costs, interest (other than interest in respect of Tranche B), fees,
commission and expenses incurred in connection with the Facility and
for general corporate purposes, including the purchase of TI Shares.
(c) The proceeds of Tranche C shall solely be utilised: (i) to refinance in
full the C Existing Indebtedness including costs, interest, fees,
commission and expenses incurred or accrued thereunder or in respect
thereof; and (ii) in the circumstances described in Clause 16.2(b), to
finance the purchase of TI Shares, and for general corporate purposes
consistent with the object of the Company as detailed in section 2 of
the by-laws of the Company in force as at 4th November, 2004.
(d) Notwithstanding anything else in this Agreement, the Company
acknowledges and agrees that it must not use the proceeds of any Loan
for the purpose of any real estate transaction which may be effected
before the Final Maturity Date.
17.2 No obligation to monitor
No Finance Party is bound to monitor or verify the utilisation of the
Facility.
18. CONDITIONS PRECEDENT
18.1 Conditions precedent documents
No Request may be given until the Facility Agent has notified the
Company and the Lenders that it has received all of the documents and
evidence set out in Allegato 2 (Conditions precedent documents) in form
and substance satisfactory to the Facility Agent, acting reasonably.
The Facility Agent must give this notification to the Company and the
Lenders promptly upon being so satisfied.
18.2 Conditions precedent to first utilisation under Tranche A and Tranche B
The obligations of each Lender to participate in the first utilisation
under Tranche A and the first utilisation under Tranche B are subject
to the further conditions precedent that the Facility Agent has
notified the Company and the Lenders (which it shall do promptly) that:
(a) in the case of the first utilisation under Tranche A or
Tranche B (whichever occurs first), it has received the
Security Agreement listed in paragraph (b) of Allegato 6
(Security Agreements) in form and substance satisfactory to
the Facility Agent; and
(b) in the case of the first utilisation under Tranche A or
Tranche B (whichever occurs first), on the Utilisation Date
for that Loan, VTL is equal to or greater than 130 per cent.
and, in the case of the first utilisation of Tranche A or
Tranche B (whichever of those Tranches which is not utilised
first), on or before the Utilisation Date for that Loan,
additional Collateral has been secured in favour of the
Lenders under a Security Agreement for this purpose so that on
that Utilisation Date the VTL, looking solely at the Tranche A
or, as the case may be, the Tranche B Loan to be made on that
Utilisation Date and that additional Collateral secured in
favour of the Lenders pursuant to a Security Agreement, is
equal to or greater than 130 per cent,
18.3 Conditions precedent to first utilisation under Tranche C
The obligations of each Lender to participate in each utilisation under
Tranche C (other than a Rollover Loan or a Loan to be made in the
circumstances described in Clause 16.2(b)) up until the date on which
all of Tranche C is drawn down are subject to the further conditions
precedent that the Facility Agent has notified the Company and the
Lenders (which it shall do promptly) that:
(a) it has received the Security Agreement listed in paragraph (c)
of Allegato 6 (Security Agreements) in form and substance
satisfactory to the Facility Agent; and
(b) on or before the Utilisation Date for that Loan, additional
Collateral has been secured in favour of the Lenders under a
Security Agreement for this purpose so that on that
Utilisation Date the VTL, looking solely at that Loan and that
additional Collateral secured in favour of the Lenders
pursuant to a Security Agreement, is equal to or greater than
120 per cent.
18.4 Further conditions precedent
The obligations of each Lender to participate in any Loan are subject
to the further conditions precedent that
(a) on both the date of the Request and the Utilisation Date for
that Loan:
(i) the Repeating Representations are correct in all
material respects;
(ii) no Event of Default is outstanding or would result
from the Loan; and
(b) for any utilisation under Tranche A, B or C other than the
ones described in Clause 18.2 or 18.3, on the Utilisation Date
for that Loan, VTL is greater than 110 per cent.
18.5 Maximum number of Loans
The Company may not deliver a Request if as a result of the proposed
Utilisation 15 or more Loans would be outstanding.
19. UTILISATION - LOANS
19.1 Giving of Requests
(a) The Company may borrow a Loan by giving to the Facility Agent a duly
completed Request.
(b) Unless the Facility Agent otherwise agrees, the latest time for receipt
by the Facility Agent of a duly completed Request is 3 p.m. one
Business Day before the Rate Fixing Day for the proposed borrowing.
(c) Each Request is irrevocable.
19.2 Completion of Requests
A Request for a Loan will not be regarded as having been duly completed
unless:
(a) the Utilisation Date is a Business Day:
(i) in the case of a Loan other than a Rollover Loan,
falling within the applicable Availability Period or
made in accordance with Clause 16.2 (Additional
Borrowings) and;
(ii) in the case of a Rollover Loan, falling prior to the
Final Maturity Date;
(b) the amount of the Loan requested is:
(i) for the first Request under Tranche A, in a minimum
amount of 'E'1,800,000,000 and for the purpose of
refinancing the A Existing Indebtedness;
(ii) for each subsequent Request under Tranche A, a
minimum of 'E'25,000,000;
(iii) for each request under Tranche B, a minimum of
'E'1,000,000;
(iv) for each request under Tranche C, a minimum of
'E'25,000,000;
(v) for the maximum undrawn amount available under the
applicable Tranche of the Facility on the proposed
Utilisation Date; or
(vi) such other amount as the Facility Agent may agree;
and
(c) the proposed Term complies with this Agreement.
Only one Loan may be requested in a Request.
19.3 Advance of Loan
(a) The Facility Agent must promptly notify each Lender of the details of
the requested Loan and the amount of its share in that Loan by no later
than 10 a.m. on the Rate Fixing Day for the proposed Utilisation Date.
(b) The amount of each Lender's share of the Loan will be its Pro Rata
Share on the proposed Utilisation Date.
(c) No Lender is obliged to participate in a Loan if, as a result:
(i) its share of Loans under a given Tranche would exceed that
Lender's Commitment in respect of that Tranche; or
(ii) all Loans under a given Tranche would exceed the Total
Commitment in respect of that Tranche; or
(iii) all Loans under the Facility would exceed the Total Commitment
for the Facility.
(d) If the conditions set out in this Agreement have been met, each Lender
must, through its Facility Office, advance its share in the Loan
through the Facility Agent to the Company on the Utilisation Date.
20. REPAYMENT
(a) The Company must repay each Loan in full on its Maturity Date.
(b) Subject to the other terms of this Agreement, any amounts repaid under
paragraph (a) above may be re-borrowed.
(c) Without prejudice to the Company's obligation to repay the full amount
of each Loan on its Maturity Date, on the date of any Rollover Loan
drawn by the Company, the amount of the Loan to be repaid and the
amount to be drawn down by the Company on that date shall be netted off
against each other so that the amount of cash which the Company is
actually required to pay or, as the case may be, the amount of cash
which the Lenders are actually required to pay to the Company shall be
the net amount.
(d) All amounts outstanding in respect of the Facility must be repaid in
full on the Final Maturity Date and from such date may not be
re-borrowed.
21. PREPAYMENT, CANCELLATION AND COLLATERAL
21.1 Mandatory prepayment - illegality
(a) A Lender must notify the Company promptly if it becomes aware that it
is unlawful in any applicable jurisdiction for that Lender to perform
any of its obligations under a Finance Document or to fund or maintain
its share in any Loan.
(b) After notification under paragraph (a) above:
(i) the Company must repay or prepay the share of that Lender in
each Loan made to it on the date specified in paragraph (c)
below; and
(ii) the Commitment of that Lender will be immediately cancelled.
(c) The date for repayment or prepayment of a Lender's share in a Loan will
be:
(i) the last day of the current Term of that Loan; or
(ii) if earlier, and unless otherwise agreed between the Company
and the relevant Lender, the date specified by the Lender in
the notification under paragraph (a) above and which must not
be earlier than the last day of any applicable grace period
allowed by law or regulation.
21.2 Mandatory Prepayment - Unlawfulness
If:
(a) it becomes unlawful for the Company to perform any of its
obligations under the Finance Documents; or
(b) any Finance Document is not effective in accordance with its
terms or is declared in writing by the Company to be
ineffective in accordance with its terms for any reason,
then all amounts outstanding under this Agreement shall become due and
payable immediately prior to the performance becoming illegal or the
Finance Document becoming ineffective and the Company shall immediately
repay all such amounts in full and the Total Commitments hereunder
shall be irrevocably cancelled in full (but so that where the
unlawfulness described in sub-paragraph (a) above relates to only some
of the Lenders, the Clause 21.2 will only apply to the affected
Lenders' shares of amounts outstanding under this Agreement and only
the affected Lenders' Commitments).
21.3 Mandatory prepayment - change of control
(a) For the purposes of this Clause:
a change of control occurs if:
(i) Pirelli & C. S.p.A. and/or Edizione Finance International
S.A.. and/or any Permitted Transferee ceases to own and
control in aggregate of at least 50 per cent. plus one share
of the issued share capital and voting rights of the Company;
or
(ii) any person or group of persons acting in concert (other than
the Company and/or its shareholders and/or any Permitted
Transferee):
(A) acquires 50 per cent. plus one share of the issued
ordinary and voting share capital of Telecom Italia
S.p.A., or
(B) acquires from the Company at least 50 per cent. of
its holding of the issued ordinary and voting shares
in Telecom Italia S.p.A. and is held by CONSOB
officially, (i.e. publicly and in writing) to be
officially controlling Telecom Italia S.p.A. and such
decision is not contested in good faith and in any
event dismissed within six months from the making of
such decision, or
(C) (other than following an acquisition from the Company
of at least 50 per cent. of its holding of the issued
ordinary and voting shares in Telecom Italia S.p.A.)
is held by CONSOB officially (i.e. publicly and in
writing) to be officially controlling Telecom Italia
S.p.A. and following negotiations in good faith for a
period of not less than ninety days from such
decision, during which the TI Shares must not be
de-listed and the Collateral Value will be calculated
once every 15 Business Days by reference to the
average quoted price for the immediately preceding 15
Business Day period, the Company and the Facility
Agent (acting on the instructions of the Super
Majority Lenders) have failed to agree a basis on
which the Facility may continue to be available; or
(iii) the Company ceases to be one of the three largest holders of
the issued ordinary and voting shares of Telecom Italia
S.p.A.; or
(iv) Pirelli & C. S.p.A. and/or any Permitted Transferee of Pirelli
& C. S.p.A ceases to own at least 30 per cent. of the issued
ordinary and voting share capital of the Company,
unless the change of control is, or is a result of, a merger involving
the Company, in which the surviving entity is:
(v) the Company following a merger with a company controlled 100
per cent. by the Company, or with any other company (provided
that Pirelli & C. S.p.A. and/or Edizione Holding S.p.A. and/or
any Permitted Transferee own and control in aggregate at least
50 per cent. plus one share of the issued share capital and
voting rights of the surviving entity), or with any
shareholder of the Company which on the Signing Date is not a
financial institution or with Telecom Italia S.p.A.; or
(vi) any shareholder of the Company which on the date of this
Agreement is not a financial institution; or
(vii) Telecom Italia S.p.A.; or
(viii) any company which is controlled by one or more of the entities
listed under (vi) and (vii) above, jointly or solely and for
this purpose controlling a company means holding more than 50
per cent of its voting capital.
(b) The Company, immediately upon becoming aware that a change of control
has occurred, must notify the Facility Agent.
(c) Following receipt of a notification under paragraph (b) above, if the
Majority Lenders so require, by a notice to the Company from the
Facility Agent, all outstanding Loans together with accrued interest
and all other amounts accrued under the Finance Documents shall become
due and payable on the date two Business Days after the date of the
notice (or on any later date specified in the notice)and the effect of
such notice from the Facility Agent to the Company shall be that,
(i) (A) to the extent the notification relates to an
event occurring under any of sub-paragraphs
(i), (iii) or (iv) of Clause 21.3(a) (each a
Relevant Event), the Total Commitments will
be irrevocably and automatically cancelled
in full (without the need for a further
notice) on the date falling three months
after the date on which the Relevant Event
occurred to the extent on such date the
circumstances referred to in sub-paragraphs
(i), (iii) or (iv)(as the case may be) of
21.3(a) have not ceased to apply; and
(B) in all other circumstances, the Total
Commitments will be irrevocably cancelled in
full; and
(ii) all outstanding Loans together with accrued interest and all
other amounts accrued under the Finance Documents shall become
due and payable on the date two Business Days after the date
of the notice (or on any later date specified in the notice).
Any such notice delivered in accordance with paragraph (c)
above shall take effect in accordance with its terms.
21.4 Mandatory prepayment for VTL requirement
(a) On each Calculation Date the Facility Agent shall promptly notify the
Company of the prices to be used for the purposes of the definition of
"Collateral Value" in relation to that Calculation Date and the actual
VTL on that Calculation Date.
(b) If the VTL on a Calculation Date is 110 per cent. or less, the Company
shall, within five Business Days of the receipt of such notification,
notify the Facility Agent whether or not it shall:
(i) secure further Collateral in favour of the Lenders by
executing and registering the appropriate security documents
in form and substance satisfactory to the Facility Agent,
acting reasonably, and delivering additional Collateral to be
held under a Security Agreement, or
(ii) voluntarily prepay the Facility in whole or in part,
in each case in an amount sufficient to ensure that the VTL is equal to
at least 130 per cent. on the date of the further securing or
prepayment.
(c) A prepayment of part of a Loan further to point (b) (ii) above must be
in a minimum amount of 'E'25,000,000 for a Tranche A Loan or a
Tranche C Loan, and in a minimum amount of 'E'1,000,000 for a
Tranche B Loan.
(d) The Company shall perform the elected option within seven Business Days
from the date of its notification to the Facility Agent.
(e) If the Company either:
(i) fails to notify the Facility Agent within five Business Days
as required under subclause (b) above, or
(ii) notifies the Facility Agent that it does not wish to exercise
either of the options in 21.4(b)(i) and 21.4(b)(ii) above; or
(iii) having elected to exercise either the option in 21.4(b)(i) or
21.4(b)(ii) above, subsequently fails to comply with the
requirements of that option within the seven Business Day
period,
then, it must immediately prepay all outstanding Loans
together with accrued interest and all other amounts accrued
under the Finance Documents.
21.5 Voluntary prepayment
(a) The Company may, by giving not less than five Business Days' (or such
shorter period as the Majority Lenders may agree) prior notice to the
Facility Agent, prepay any Loan at any time in whole or in part.
(b) A prepayment of part of a Loan must be in a minimum amount of
'E'25,000,000 for a Tranche A Loan or a Tranche C Loan, and in a
minimum amount of 'E'1,000,000 for a Tranche B Loan.
21.6 Automatic cancellation
The Commitment of each Lender under a Tranche in relation to any amount
which has never been utilised under that Tranche will be automatically
cancelled at the close of business on the last day of the Availability
Period for that Tranche. The remainder of the Commitment will continue
to be available, subject to the terms of this Agreement, for
utilisations as described in Clause 16.2 and will be irrevocably
cancelled in full on the Final Maturity Date.
21.7 Voluntary cancellation
(a) Subject to paragraph (d) below the Company may, by giving not less than
five Business Days' (or such shorter period as the Majority Lenders may
agree) prior notice to the Facility Agent, cancel the unutilised amount
of the Total Commitments in whole or in part.
(b) Partial cancellation of the Total Commitments must be in a minimum
amount of 'E'50,000,000 or the remaining Commitments in a tranche
where this is less than 'E'50,000,000.
(c) Any cancellation in part will be applied against the Commitment of each
Lender pro rata.
(d) The Company may only cancel in whole or in part the unutilised amounts
of the Tranche C Commitments to the extent that it provides the
Facility Agent with a certificate confirming that it has sufficient
funds or availability of funds to repay in full the amount then
outstanding of the C Existing Indebtedness.
21.8 Optional reduction of Collateral
At any time when the VTL then calculated is at least equal to 140 per
cent., the Company may, at its sole discretion, request that the
Facility Agent (on behalf of the Lenders) release part of the
Collateral by delivering a Release Certificate, provided that the VTL
remains, following such release, at least equal to 130 per cent.,
whereupon, the Facility Agent (on behalf of the Lenders) shall promptly
give effect to such release with effect from the date on which the
Facility Agent has received a duly completed Release Certificate.
21.9 Optional Additional Collateral
The Company at its option may secure additional Collateral by executing
and registering the appropriate security documents in form and
substance satisfactory to the Facility Agent acting reasonably and
delivering additional Collateral to be held under a Security Agreement,
provided that the VTL, following such injection, will not be less than
120 per cent.
21.10 Involuntary prepayment and cancellation
(a) If the Company is, or will be, required to pay to a Lender:
(i) a Tax Payment; or
(ii) an Increased Cost,
the Company may while the requirement continues give notice to the
Facility Agent requesting prepayment and cancellation in respect of
that Lender.
(b) After notification under paragraph (a) above:
(i) the Company must repay or prepay that Lender's share in each Loan made
to it on the date specified in paragraph (c) below; and
(ii) the Commitment of that Lender will be immediately cancelled.
(c) The date for repayment or prepayment of a Lender's share in a Loan will
be:
(i) the last day of the Term for that Loan; or
(ii) if earlier, the date specified by the Company in its
notification.
21.11 Application
All amounts prepaid under Clause 21.4 (Mandatory prepayment for VTL
requirement) or Clause 21.5 (Voluntary prepayment) will be applied in
prepayment of the principal amount of the Loans then outstanding as
specified by the Company and, if not specified, will be applied against
prepayment of the principal amount of Loans then outstanding) under:
(a) first, Tranche A;
(b) second, Tranche B; and
(c) third, Tranche C,
and in each case unless expressly provided otherwise, against, each
Lenders share in the relevant Loans (or each Lender's relevant
Commitment, as the case may be) pro rata.
21.12 Re-borrowing of Loans
(a) Any voluntary prepayment of a Loan may be re-borrowed on the terms of
this Agreement.
(b) Save as otherwise provided in this Agreement, any mandatory or
involuntary prepayment of a Loan may not be re-borrowed excluding for
the avoidance of doubt a prepayment under Clause 21.3(c), Clause
21.4(b)(ii) or a repayment under Clause 20(a).
21.13 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable and must specify the relevant date(s) and the affected
Loans and Commitments. The Facility Agent must notify the Lenders
promptly of receipt of any such notice.
(b) All prepayments under this Agreement must be made with accrued interest
on the amount prepaid. No premium or penalty is payable in respect of
any prepayment except for Break Costs.
(c) The Majority Lenders may agree a shorter notice period for a voluntary
prepayment or a voluntary cancellation.
(d) No prepayment or cancellation is allowed except in accordance with the
express terms of this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(f) If the Facility Agent receives a notice under this Clause 21
(Prepayment, Cancellation and Collateral) it shall promptly forward a
copy of that notice to either the Company or the affected Lender, as
appropriate.
22. INTEREST
22.1 Calculation of interest
The rate of interest on each Loan for each Term is the percentage rate
per annum equal to the aggregate of the applicable:
(a) Margin (calculated in accordance with Clause 22.3 (Margin adjustments)
below; and
(b) EURIBOR.
22.2 Payment of interest
Except where it is provided to the contrary in this Agreement, the
Company must pay accrued interest on each Loan made to it on the last
day of each Term and also, if the Term is longer than six months, on
the dates falling at six-monthly intervals after the first day of its
Term.
22.3 Margin adjustments
(a) The Margin in respect of the first utilisation under Tranche A and
Tranche B shall be 1.00 per cent. per annum and shall apply for the
duration of its Term.
(b) The Margin for each other Loan will be calculated in accordance with
the table below and shall be determined by the Facility Agent two
Business Days prior to the Utilisation Date by reference to VTL on the
Utilisation Date for such Loan. The Margin so determined by the
Facility Agent shall apply for the duration of that Term.
------------------------------------------------ -------------------------------------------------------
Column 2
Column 1 Margin
VTL (per cent. per annum)
------------------------------------------------ -------------------------------------------------------
Greater than 110 per cent. but less than 130 1.05
per cent.
------------------------------------------------ -------------------------------------------------------
Equal to or greater than 130 per cent. but 1.00
less than 150 per cent.
------------------------------------------------ -------------------------------------------------------
Equal to or greater than 150 per cent. 0.95
------------------------------------------------ -------------------------------------------------------
22.4 Interest on overdue amounts
(a) If the Company fails to pay any amount payable by it under this
Agreement, it must immediately on demand by the Facility Agent pay
interest on the overdue amount from its due date up to the date of
actual payment, both before and after judgment.
(b) Interest on an overdue amount is payable at a rate determined by the
Facility Agent to be one per cent. per annum above the rate which would
have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue amount.
For this purpose, the Facility Agent may (acting reasonably):
(i) select successive terms of any duration up to three months;
and
(ii) determine the appropriate Rate Fixing Day for that Term.
(c) Notwithstanding paragraph 22.4 (b) above, if the overdue amount is a
principal amount of a Loan and becomes due and payable before the last
day of its current Term, then:
(i) the first Term for that overdue amount will be the unexpired
portion of that Term; and
(ii) the rate of interest on the overdue amount for that first Term
will be one per cent. per annum above the rate then payable on
that Loan.
After the expiry of the first Term for that overdue amount, the rate on
the overdue amount will be calculated in accordance with paragraph
8.4(b) above.
(d) Interest (if unpaid) on an overdue amount will not be compounded with
that overdue amount at the end of each of its Terms but the accrued
interest will at all times be immediately due and payable.
22.5 Notification of rates of interest
The Facility Agent must promptly notify each Party of the determination
of a Margin or a rate of interest under this Agreement.
22.6 Interest cap
For the avoidance of doubt, notwithstanding any other provision hereof,
if at any time the interest rate stated to be payable under this
Agreement would cause a breach of Italian usury law, then the rate of
interest payable under this Agreement shall be capped at the maximum
amount permitted to be payable under Italian usury law.
23. TERMS
23.1 Selection
(a) Each Loan has one Term only.
(b) The Company must select the Term for a Loan in the relevant Request.
(c) Subject to the following provisions of this Clause, each Term for a
Loan will be one, two, three or six months or any other period agreed
by the Company and the Lenders.
(d) The Term of the first Loan made under Tranche A may, notwithstanding
the terms of this sub-clause, be the period specified by the Company in
the Request as being the period which matches the period to the next
interest payment date under the October Facility.
23.2 No overrunning the Final Maturity Date
If a Term would otherwise overrun the Final Maturity Date, it will be
shortened so that it ends on the Final Maturity Date.
23.3 Notification
The Facility Agent must notify each relevant Party of the duration of
each Term promptly after ascertaining its duration.
24. MARKET DISRUPTION
24.1 Failure of a Reference Bank to supply a rate
If EURIBOR is to be calculated by reference to the Reference Banks but
a Reference Bank does not supply a rate by 12.00 noon (Milan time) on a
Rate Fixing Day, the applicable EURIBOR will, subject as provided
below, be calculated on the basis of the rates of the remaining
Reference Banks.
24.2 Market disruption
(a) In this Clause, each of the following events is a market disruption
event:
(i) EURIBOR is to be calculated by reference to the Reference
Banks but no, or only one, Reference Bank supplies a rate by
12.00 noon (Milan time) on the Rate Fixing Day; or
(ii) the Facility Agent receives by close of business on the Rate
Fixing Day notification from Lenders whose shares in the
relevant Loan exceed 50 per cent. of that Loan that the cost
to them of obtaining matching deposits in the European
interbank market is in excess of EURIBOR for the relevant
Term.
(b) The Facility Agent must promptly notify the Company and the Lenders of
a market disruption event.
(c) After notification under paragraph (b) above, the rate of interest on
each Lender's share in the affected Loan for the relevant Term will be
the aggregate of the applicable:
(i) Margin; and
(ii) rate notified to the Facility Agent by that Lender as soon as
practicable, and in any event before interest is due to be
paid in respect of that Term, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding
its share in that Loan from whatever source it may reasonably
select.
24.3 Alternative basis of interest or funding
(a) If a market disruption event occurs and the Facility Agent or the
Company so requires, the Company and the Facility Agent must enter into
negotiations for a period of not more than 30 days with a view to
agreeing an alternative basis for determining the rate of interest
and/or funding for the affected Loan.
(b) Any alternative basis agreed will be, with the prior consent of all the
Lenders, binding on all the Parties.
(c) Should no agreement be reached during the period referred to in
paragraph (a) above and while the market disruption event is
continuing, each Lender (acting reasonably and in good faith) shall
communicate to the Facility Agent its cost of funding its share in the
affected Loan as described in Clause 24.2(c) for each Term and the
component of interest on such Loan for the purposes of Clause
24.2(c)(ii) for that Lender and that Term shall be the rate so
notified.
25. TAXES
25.1 General
In this Clause Tax Credit means a credit against any Tax or any relief
or remission for, or repayment of, any Tax (or its repayment).
25.2 Tax gross-up
(a) The Company must make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required
by law.
(b) If the Company is aware that it must make a Tax Deduction (or that
there is a change in the rate or the basis of a Tax Deduction), it must
promptly notify the Facility Agent. The Facility Agent must then
promptly notify the affected Parties.
(c) If a Tax Deduction is required by law to be made by the Company or the
Facility Agent, the amount of the payment due from the Company will (to
the extent that the beneficiary of such payment is a Qualifying Lender)
be increased to an amount which (after making the Tax Deduction) leaves
an amount equal to the payment which would have been due if no Tax
Deduction had been required.
(d) If the Company is required to make a Tax Deduction, it must make the
minimum Tax Deduction allowed by law or by the relevant double taxation
treaty applicable and must make any payment required in connection with
that Tax Deduction within the time allowed by law.
(e) Within three months of making either a Tax Deduction or a payment
required in connection with a Tax Deduction, the Company must deliver
to the Facility Agent for the relevant Finance Party evidence
satisfactory to that Finance Party (acting reasonably) that the Tax
Deduction has been made or (as applicable) the appropriate payment has
been paid to the relevant taxing authority.
(f) Each Finance Party shall provide all documents required and co-operate
with the Company in completing any applicable procedural formalities
necessary for the Company to make payments
without a Tax Deduction or with minimum Tax Deduction allowed by law or
by the relevant double taxation treaty applicable.
25.3 Tax indemnity
(a) Except as provided below, the Company shall pay to a Finance Party an
amount equal to any loss, liability or cost which that Finance Party
determines has been suffered for or on account of Tax by that Finance
Party in respect of a Finance Document.
(b) Paragraph (a) above does not apply to any Tax assessed on a Finance
Party under the laws of the jurisdiction in which:
(i) that Finance Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that Finance Party is
treated as resident for tax purposes; or
(ii) that Finance Party's Facility Office is located in respect of
amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
or revenue received or receivable by that Finance Party. However, any
payment deemed to be received or receivable, including any amount
treated as income but not actually received by the Finance Party, such
as a Tax Deduction, will not be treated as net income received or
receivable for this purpose.
(c) A Finance Party making or intending to make a claim under paragraph (a)
above must promptly and, in any event, within two months of becoming
aware of the relevant loss, liability or cost, notify the Facility
Agent of the event which will give, or has given, rise to the claim
following which the Facility Agent shall notify the Company. A Finance
Party shall not be entitled to payment of any amount under paragraph
(b) above which is attributable to any period before the date two
months before the date the Finance Party notifies the Facility Agent of
the loss, liability or cost.
25.4 Tax Credit
If the Company makes a Tax Payment and the relevant Finance Party
acting reasonably and in good faith determines that:
(a) a Tax Credit is attributable either to an increased payment of
which that Tax Payment forms part or to that Tax Payment; and
(b) it has used and retained that Tax Credit,
the Finance Party must pay an amount to the Company which that Finance
Party determines acting reasonably and in good faith will leave it
(after that payment) in the same after-tax position as it would have
been if the Tax Payment had not been required to be made by the
Company. A Finance Party paying a Tax Credit shall provide the Company
with reasonable details of its calculation of the Tax Credit, subject
to Clause 27.2 (Conduct of business by a Finance Party).
25.5 Stamp taxes
The Company must pay and indemnify each Finance Party against any stamp
duty, registration or other similar Tax (including, for the avoidance
of doubt, Imposta Sostitutiva) payable in connection with the entry
into, performance or enforcement of any Finance Document, except for
any such Tax payable in connection with the entry into a Transfer
Certificate.
25.6 Value added taxes
(a) Any amount payable under a Finance Document by the Company is exclusive
of any value added tax or any other Tax of a similar nature which might
be chargeable in connection with that amount. If any such Tax is
chargeable, the Company must pay to the Finance Party (in addition to
and at the same time as paying that amount) an amount equal to the
amount of that Tax.
(b) Where a Finance Document requires any Party to reimburse a Finance
Party for any costs or expenses, that Party must also at the same time
pay and indemnify the Finance Party against all value added tax or any
other Tax of a similar nature incurred by the Finance Party in respect
of those costs or expenses but only to the extent that the Finance
Party (acting reasonably) determines that it is not entitled to credit
or repayment from the relevant tax authority in respect of the Tax.
26. INCREASED COSTS
26.1 Increased costs
Except as provided below in this Clause, the Company must pay to a
Finance Party the amount of any Increased Cost incurred by that Finance
Party as a result of:
(a) the introduction of, or any change in, or any change in the
prevailing interpretation, administration or application of,
any law or regulation; or
(b) compliance with any law or regulation,
made after the date of this Agreement.
26.2 Exceptions
The Company need not make any payment for an Increased Cost to the
extent that the Increased Cost is:
(a) compensated for under another Clause or would have been but
for an exception to that Clause;
(b) a tax, or attributable to a tax, on the overall net income of
a Finance Party or any of its Affiliates;
(c) attributable to any period before the date falling two months
before the Finance Party notifies the Facility Agent (which as
soon as is reasonably practicable, notify the Company) of the
Increased Cost; or
(d) attributable to a Finance Party or its Affiliate wilfully
failing to comply with any law or regulation.
26.3 Claims
(a) A Finance Party intending to make a claim for an Increased Cost must
notify the Facility Agent of the circumstances giving rise to and the
amount of the claim within two months after becoming aware of it,
following which the Facility Agent will promptly notify the Company.
(b) Each Finance Party must, as soon as practicable after a demand by the
Facility Agent (which shall make this demand if so requested by the
Company) provide a certificate containing reasonable evidence of the
amount of its Increased Cost.
27. MITIGATION
27.1 Mitigation
(a) Each Finance Party must, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which
result or would result in:
(i) any Tax Payment or Increased Cost being payable to that
Finance Party;
(ii) that Finance Party being able to exercise any right of
prepayment and/or cancellation under this Agreement by reason
of any illegality; or
(iii) that Finance Party incurring any cost of complying with the
minimum reserve requirements of the European Central Bank
(iv) it being unlawful for the Company to perform any of its
obligations under the Finance Documents,
including transferring its rights and obligations under the Finance
Documents to an Affiliate or changing its Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of the
Company under the Finance Documents.
(c) The Company must indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of any
step taken by it under this Subclause.
(d) A Finance Party is not obliged to take any step under this Subclause
if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it.
27.2 Conduct of business by a Finance Party
No term of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(Tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it in respect of Tax or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its
affairs (Tax or otherwise) or any computation in respect of Tax.
28. PAYMENTS
28.1 Place
Unless a Finance Document specifies that payments under it are to be
made in another manner, all payments by a Party (other than the
Facility Agent) under the Finance Documents must be made to the
Facility Agent to its account at such office or bank in Milan, as it
may notify to that Party for this purpose by not less than five
Business Days' prior notice.
28.2 Funds
Payments under the Finance Documents to the Facility Agent must be made
for value on the due date at such times and in such funds as the
Facility Agent may specify to the Party concerned as being customary at
the time for the settlement of transactions in that currency in the
place for payment.
28.3 Distribution
(a) Each payment received by the Facility Agent under the Finance Documents
for another Party must, except as provided below, be made available by
the Facility Agent to that Party by payment (as soon as practicable
after receipt) to its account with such office or bank in Milan, as it
may notify to the Facility Agent for this purpose by not less than five
Business Days' prior notice.
(b) The Facility Agent may apply any amount received by it for the Company
in or towards payment (as soon as practicable after receipt) of any
amount due from the Company under the Finance Documents.
(c) Where a sum is paid to the Facility Agent under this Agreement for
another Party, the Facility Agent is not obliged to pay that sum to
that Party until it has established that it has actually received it.
However, the Facility Agent may assume that the sum has been paid to
it, and, in reliance on that assumption, make available to that Party a
corresponding amount. If it transpires that the sum has not been
received by the Facility Agent, that Party must immediately on demand
by the Facility Agent refund any corresponding amount made available to
it together with interest on that amount from the date of payment to
the date of receipt by the Facility Agent at a rate calculated by the
Facility Agent to reflect its cost of funds.
28.4 Currency
(a) Unless a Finance Document specifies that payments under it are to be
made in a different manner, the currency of each amount payable under
the Finance Documents is determined under this Clause.
(b) Amounts payable in respect of Taxes, fees, costs and expenses are
payable in the currency in which they are incurred.
(c) Each other amount payable under the Finance Documents is payable in
euros.
28.5 No set-off or counterclaim
All payments made by the Company under the Finance Documents must be
made without and free and clear of any deduction for set-off or
counterclaim.
28.6 Business Days
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment will instead be the next
Business Day.
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate
payable on the original due date.
28.7 Partial payments
(a) If the Facility Agent receives a payment insufficient to discharge all
the amounts then due and payable by the Company under the Finance
Documents, the Facility Agent must apply that payment towards the
obligations of the Company under the Finance Documents in the following
order:
(i) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Administrative Parties under the
Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this
Agreement;
(iii) thirdly, in or towards payment pro rata of any principal
amount due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) The Facility Agent must, if so directed by the Super Majority Lenders,
vary the order set out in subparagraphs (a)(ii) to (iv) above.
(c) This Subclause will override any appropriation made by the Company.
28.8 Timing of payments
If a Finance Document does not provide for when a particular payment is
due, that payment will be due within twenty Business Days of demand by
the relevant Finance Party.
29. REPRESENTATIONS
29.1 Representations
The representations set out in this Clause are made by the Company to
each Finance Party.
29.2 Status
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of Italy.
(b) It has the power to own its assets and carry on its business as it is
being conducted.
29.3 Legal validity
Subject to any general principles of law limiting its obligations as
referred to in any legal opinion delivered under this Agreement each
Finance Document and each Fee Letter to which it is a party is its
legally binding, valid and enforceable obligation.
29.4 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents and the Fee Letters do not
conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement which is binding upon it or any of its assets.
29.5 No Event of Default
No Event of Default is outstanding or will result from the making of a
Loan.
29.6 Pari passu ranking
The Company's payment obligations under the Finance Documents rank at
least pari passu with all its other unsecured and unsubordinated
payment obligations other than payment obligations which have priority
by operation of law applicable generally to companies.
29.7 Authorisations
All authorisations and licences required by the Company under Italian
law for the purpose of enabling the Company to execute and perform its
obligations under the Finance Documents and the Fee Letters or for the
purpose of the validity and enforceability of, or admissibility into
evidence in Italy of, the Finance Documents and the Fee Letters have
been obtained or effected (as appropriate) and are in full force and
effect, subject, in the case of the Security Agreements, to appropriate
formalities and registration requirements.
29.8 Litigation
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which are likely to be adversely
determined and which, if adversely determined, would have a Material
Adverse Effect, have been commenced against it.
29.9 Jurisdiction/governing law
(a) The choice of English Law as the governing law of this Agreement will
be recognised and enforced in Italy, subject to any general principles
of law which are specifically referred to in any legal opinion
delivered pursuant to this Agreement.
(b) Any judgment obtained in England in relation to this Agreement will be
recognised and enforced in Italy, subject to any general principles of
law which are specifically referred to in any legal opinion delivered
pursuant to this Agreement.
29.10 Principal Business
Its principal business is that of a holding company or that which would
result from a merger or demerger which is not prohibited under this
Agreement.
29.11 Title to assets
(a) No Security Interest exists over the assets of the Company which is
prohibited under Subclause 32.3 (Negative pledge).
(b) The Company is the legal owner free of any Security Interest (subject
to the registration of the release of the Security Interest securing
the October Facility) of any Collateral which it purports to grant as
security to the Lenders under any Security Agreement.
29.12 No winding up or insolvency
(a) It is not unable to pay its debts as they fall due or insolvent;
(b) it has not admitted its inability to pay its debts as they fall due;
(c) no moratorium has been declared in respect of any of its indebtedness;
(d) no step has been taken by the Company with a view to a moratorium under
(c) above or similar arrangement with any of its creditors;
(e) no meeting of its shareholders has been convened for the purpose of
considering any resolution for, to petition for or to file documents
with a court or any registrar for, its winding-up, administration or
dissolution or any such resolution has been passed (except, in each
case, where in connection with or for the purpose of an amalgamation,
demerger, merger or reconstruction permitted under this Agreement);
(f) no person has presented a petition, or files documents with a court or
any registrar, for its winding-up, administration or dissolution
(except, in each case, where in connection with or for the purpose of
an amalgamation, demerger, merger or reconstruction not prohibited
under this Agreement), other than where the petition is frivolous or
vexatious and is being contested in good faith and is in any event
discharged within 60 days of the petition being filed;
(g) no order for its winding-up, administration or dissolution has been
made which is not being contested in good faith and with due diligence
provided that to the extent that any such order is being so contested
it is in any event discharged within 60 days of the date of the
relevant order;
(h) no liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or similar
officer has been appointed in respect of it or a substantial part of
its assets and any such appointment is not being contested in good
faith and with due diligence provided that to the extent that any such
appointment is being so contested it is in any event discharged within
60 days of the date of the relevant appointment;
(i) no shareholder, director or other officer has requested the appointment
of, or given notice of its intention to appoint, a liquidator, trustee
in bankruptcy, judicial custodian, compulsory manager, receiver,
administrative receiver, administrator or similar officer;
(j) no other analogous step or procedure has been taken in any jurisdiction
having regard to the foregoing provisions of this Clause 29.12 which is
not being contested in good faith and with due diligence provided that
to the extent that any such step or procedure is being so contested, it
is in any event discharged within 30 days of the date of the relevant
step or procedure; and
(k) no attachment, sequestration, distress or execution has affected any of
its asset(s) having an aggregate value of at least 'E'50,000,000
which has not been discharged within 60 days.
29.13 Times for making representations
(a) The representations set out in this Clause are made by the Company on
the date of this Agreement.
(b) Save in the case of Subclause:
(i) 29.4(Non-conflict);
(ii) 29.8 (Litigation); and
(iii) 29.10 (Principal Business),
each representation is deemed to be repeated by the Company on the date
of each Request and the first day of each Term.
(c) When a representation is repeated, it is applied to the circumstances
existing at the time of repetition.
30. INFORMATION COVENANTS
30.1 Financial statements
(a) The Company must make available to the Facility Agent its audited
financial statements for each of its financial years ending after the
date of this Agreement to the Facility Agent in sufficient copies for
all the Lenders.
(b) All financial statements must be supplied promptly when publicly
available.
(c) Except as provided to the contrary in this Agreement, each set of
financial statements delivered by the Company pursuant to this Clause
30.1 is to be prepared in accordance with GAAP. If GAAP utilised by the
Company as at 31 December 2004 at any time changes in a way that has or
will have an impact on the calculation to the covenants set our in
Clause 31 (Financial Covenants) and/or any calculation under Clause
22.3 (Margin adjustments) then:
(i) the Company must promptly notify the Facility Agent of such
change;
(ii) the Company and Facility Agent must enter into discussions in
good faith for a period or not more than 30 days to discuss
the consequences of such change on the calculations of the
covenants in this Clause 31 (Financial Covenants) with a view
to agreeing any amendments required to be made to this
Agreement to place the Company and the Lenders in the same
position as they would have been in if the change to GAAP had
not happened. Any agreement between the Company and the
Facility Agent pursuant to this Clause will be, with the prior
consent of the Super Majority Lenders, binding on all the
Parties. If no agreement is reached on the required amendments
to this Agreement, the Company must supply with each set of
financial statements a reconciliation statement in sufficient
but reasonable detail to allow the covenants in Clause 31
(Financial Covenants) to be tested on the basis of prevailing
GAAP at that time.
30.2 Compliance Certificate
(a) The Company must supply to the Facility Agent a Compliance Certificate
twice a year (on or before 31 October and within 30 calendar days after
the annual audited financial statements become publicly available in
final form) setting out (in reasonable detail) computations as to
compliance with Clause 31 (Financial Covenants) as at the date as at
which the balance sheet in those financial statements was drawn up.
(b) A Compliance Certificate must be signed by one authorised signatory of
the Company.
30.3 Notification of Event of Default
The Company must notify the Facility Agent of any Event of Default (and
the steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence.
30.4 Know your customer requirements
(a) If:
(i) the introduction of or any change in (or in the prevailing
interpretation, administration or application of) any law or
regulation made after the date of this Agreement;
(ii) any change in the status of the Company after the date of this
Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of its
rights and obligations under this Agreement to a party that is
not a Lender prior to such assignment or transfer,
obliges the Facility Agent or any Lender (or, in the case of paragraph
(iii) above, any prospective new Lender) to comply with "know your
customer" or similar identification procedures in circumstances where
the necessary information is not already available to it, the Company
shall promptly upon the request of the Facility Agent or any Lender
supply, or procure the supply of, such documentation and other evidence
which is not prevented from doing so by any law or regulation, as is
reasonably requested by the Facility Agent (for itself or on behalf of
any Lender)
or any Lender (for itself or, in the case of the event described in
paragraph (iii) above, on behalf of any prospective new Lender) in
order for the Facility Agent, such Lender or, in the case of the event
described in paragraph (iii) above, any prospective new Lender to carry
out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents.
(b) Each Lender shall promptly upon the request of the Facility Agent
supply or procure the supply of, such documentation and other evidence
as is reasonably requested by the Facility Agent (for itself) in order
for the Facility Agent to carry out and be satisfied it has complied
with all necessary "know your customer" or other similar checks under
all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents.
31. FINANCIAL COVENANTS
31.1 Interpretation
(a) Except as provided to the contrary in this Agreement, an accounting
term used in this Clause is to be construed in accordance with the
principles applied in connection with the Original Financial
Statements.
(b) No item must be credited or deducted more than once in any calculation
under this Clause.
31.2 VTL
On each Utilisation Date VTL must comply with the applicable
provisions of Clause 18.2, Clause 18.3 or Clause 18.4(b).
31.3 Net financial position
Net Financial Position of the Company to be less than 'E'4,000,000,000
(measured on a half-yearly basis).
32. GENERAL COVENANTS
32.1 General
The Company agrees to be bound by the covenants set out in this Clause
relating to it.
32.2 Authorisations
The Company must promptly obtain, maintain and comply with the terms of
any authorisation or licence required under Italian law or regulation
to enable it to perform its obligations under, or necessary to ensure
the validity or enforceability or admissibility into evidence of, any
Finance Document.
32.3 Negative pledge
(a) Except as provided below, the Company must own, free from any Security
Interest at signing. TI Shares, TI Convertible Bonds and/or TI Warrants
(the Buffer), the value of which (calculated on the Closing Date by the
Facility Agent by reference to the average quoted price (prezzo
ufficiale)
of TI Shares, TI Convertible Bonds and/or TI Warrants on the Milan
stock exchange for the preceding 25 consecutive Trading Days) is equal
to 115 per cent. of the sum (as at the date of this Agreement) of the
outstanding principal amounts under MPS Loan Agreement, Antonveneta
Loan Agreement and Interbanca Loan Agreement (the "Unsecured Loan
Agreements"), until their respective repayments. The obligation in this
sub-clause is the "Negative Pledge".
(b) The Negative Pledge will cease to apply, and security may be created
over the Buffer, if and to the extent that:
(i) the Unsecured Loan Agreements are refinanced or rescheduled by
borrowings with all the scheduled repayment dates falling at
least one month after the Final Maturity Date; or
(ii) the Unsecured Loan Agreements are refinanced or rescheduled by
borrowings with any scheduled repayment date falling sooner
than one month after the Final Maturity Date (the Company
having used reasonable efforts to refinance or reschedule as
described in (i)) and the Mandated Lead Arrangers have,
following a request from the Company, either consented to that
refinancing or have provided the refinancing themselves. The
consent of the Mandated Lead Arrangers will be deemed to have
been given if none of them(1) commit to provide a refinancing
facility on terms equivalent to that offered to the Company by
one or more financial institutions (reflecting economic terms
consistent with market conditions at the time the provision of
the facility is required), with a term at least three months
longer than that offered by the other financial institution or
institutions, and with an initial VTL of 130 per cent. within
ten Business Days of the Company's request or do not execute
loan documentation evidencing the terms of that facility.
(c) To the extent that the loans under the Unsecured Loan Agreements are
only refinanced or rescheduled as described in (ii) above in part, the
Negative Pledge will cease to apply to a percentage of the Buffer equal
to the percentage of the loans referred to in subclause (a) above being
refinanced.
(d) Should the loans under the Unsecured Loan Agreements be prepaid, repaid
or, utilised to finalise the Demerger, partially or totally, the number
of TI Shares, TI Convertible Bonds and/or TI Warrants which are subject
to the Negative Pledge will be reduced accordingly.
(e) TI Shares, TI Convertible Bonds and/or TI Warrants subject to the
Negative Pledge may be utilised by the Company for the purpose of
securing further Collateral under Clause 21.4 (Mandatory prepayment for
VTL requirement). In this event there will be no breach of the Negative
Pledge in respect of the TI Shares, TI Convertible Bonds and/or TI
Warrants so utilised.
The Negative Pledge does not apply to any Security Interest constituted
by the Security Agreements.
32.4 Mergers
The Company may not enter into any legal amalgamation, or legal merger
or legal demerger otherwise than with the prior written consent of the
Majority Lenders (not be unreasonably withheld), except for:
________________
(a) mergers with any entity that the Company controls (solely or
jointly), directly or indirectly and any entity that controls
(solely or jointly), directly or indirectly, the Company and
for this purpose controlling an entity means holding more than
50 per cent of its voting capital;
(b) (i) a merger (fusione per incorporazione) between the Company
and a company which is 100 per cent. owned by the Company and
to which a percentage of the assets and liabilities of
Holinvest have previously been transferred by way of a
demerger (scissione ▇▇▇▇▇▇▇▇) or (ii) the direct transfer to,
or assumption by, the Company of such a percentage of such a
company's assets and liabilities; and
(c) the Demerger.
32.5 Hedging
The Company must within six months of the Closing Date enter into
interest rate hedging arrangements for a period ending on the Final
Maturity Date in respect of at least 60 per cent. of the aggregate
amount of the Loans outstanding (measured half-yearly). Such hedging
arrangements will take into consideration the economics of the Company
and the market conditions prevailing at that time and will be aimed at
fixing or capping the effective interest rate payable by the Company in
respect of the applicable percentage of the Loans. At the Facility
Agent's request, the Company shall provide promptly reasonable evidence
thereof subject to the provisions of Clause 41.
33. EVENTS OF DEFAULT
33.1 Events of Default
Each of the events set out in this Clause is an Event of Default.
33.2 Non-payment
The Company does not pay on the due date any amount payable by it under
the Finance Documents in the manner required under the Finance
Documents, unless (other than as the case of a non-payment under Clause
21.4 (Mandatory prepayment for VTL requirement)) the non-payment is
remedied within five Business Days of the due date or (in the case of a
non-payment under Clause 7.4 (Mandatory prepayment for VTL
requirement)) the non-payment is caused by technical or administrative
error and is remedied within three Business Days of the due date.
33.3 Breach of other obligations
(a) The Company does not comply with any term of Clause 32.5 (Hedging)
unless such non-compliance is remedied within two months of the earlier
of the Facility Agent giving notice of that non-compliance to the
Company.
(b) The Company does not comply with any other term of the Finance
Documents not already referred to in this Clause, unless the
non-compliance:
(i) is capable of remedy; and
(ii) is remedied within twenty days of the Facility Agent giving
notice of that non-compliance to the Company.
33.4 Misrepresentation
A representation made or repeated by the Company in any Finance
Document or in any Request is incorrect in any material respect when
made or deemed to be repeated, unless the circumstances giving rise to
the misrepresentation:
(a) are capable of remedy; and
(b) are remedied within twenty days of the Facility Agent giving
notice of the misrepresentation to the Company.
33.5 Cross-default
Any of the following occurs in respect the Company:
(a) any of its Financial Indebtedness is not paid when due (after
the expiry of any applicable grace period and any grace period
in the event of default clause in the agreement under which
that Financial Indebtedness was advanced);
(b) any of its Financial Indebtedness:
(i) becomes prematurely due and payable;
(ii) is placed on demand; or
(iii) is entitled to be declared due and payable by its
creditor prior to its specified maturity (and remains
entitled to be declared so due and payable for a
period of five Business Days),
in each case, as a result of an event of default (howsoever
described);
unless the aggregate amount of Financial Indebtedness falling within
all or any of paragraphs (a) or (b) above is less than 'E'30,000,000 or
its equivalent.
33.6 Insolvency
Any of the following occurs in respect of the Company:
(a) it is unable to pay its debts as they fall due or insolvent;
(b) it admits its inability to pay its debts as they fall due;
(c) it suspends making payments on its debts generally or
announces an intention to do so, except where (i) the
obligation to pay is being contested in good faith, and
(ii) the suspension is not due to financial difficulties;
(d) by reason of actual or anticipated financial difficulties,
it begins negotiations with its creditors for the
rescheduling of its indebtedness; or
(e) a moratorium is declared in respect of its indebtedness.
33.7 Insolvency proceedings
(a) Except as provided below, any of the following occurs in respect of the
Company:
(i) any step is taken by the Company with a view to a moratorium
or a composition, assignment or similar arrangement with any
of its creditors;
(ii) a meeting of its shareholders is convened for the purpose of
considering any resolution for, to petition for or to file
documents with a court or any registrar for, its winding-up,
administration or dissolution or any such resolution is passed
(except, in each case, where in connection with or for the
purpose of an amalgamation, demerger, merger or reconstruction
permitted under the Finance Documents);
(iii) any person presents a petition, or files documents with a
court or any registrar for, for its winding-up, administration
or dissolution (except, in each case, where in connection with
or for the purpose of an amalgamation, demerger, merger or
reconstruction permitted under the Finance Documents) other
than where the petition or filing is frivolous or vexatious
and is being contested in good faith and is in any event
discharged within 60 days;
(iv) an order for its winding-up, administration or dissolution is
made;
(v) any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver,
administrator or similar officer is appointed in respect of it
or a substantial part of its assets and any such appointment
is not being contested in good faith and with due diligence
provided that to the extent that any such appointment is being
so contested it is in any event discharged within 60 days of
the date of the relevant appointment;
(vi) its shareholders, directors or other officers request the
appointment of, or give notice of their intention to appoint,
a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver,
administrator or similar officer; or
(vii) any other analogous step or procedure is taken in any
jurisdiction.
(b) Paragraph (a) does not apply to a petition for winding-up presented by
a creditor which is being contested in good faith and with due
diligence and is discharged or struck out within 60 days.
33.8 Creditors' process
Any attachment, sequestration, distress or execution affects any
asset(s) of the Company having an aggregate value of at least
'E'50,000,000 and is not contested in good faith and in any event is
not discharged within 60 days.
33.9 Effectiveness of Finance Documents
The Company repudiates a Finance Document or evidences in writing an
intention to repudiate a Finance Document.
33.10 Failure to comply with final judgment
The Company fails to comply with or pay any sum due from it under any
enforceable final judgment or any enforceable final order made or given
by any court of competent jurisdiction, in each case for an aggregate
value of which would have a Material Adverse Effect.
33.11 Security
A Security Agreement ceases to confer Security Interests over the
undertaking, property, assets and rights of the Company over which it
purports to create Security Interests and or those Security Interests
are not first ranking security interests, except where such Security
Interests are released in accordance with this Agreement.
33.12 Acceleration
If an Event of Default is outstanding, the Facility Agent must, if so
instructed by the Super Majority Lenders, by notice to the Company:
(a) cancel all or any part of the Total Commitments; and/or
(b) declare that all or part of any amounts outstanding under this
Agreement are:
(i) immediately due and payable; and/or
(ii) payable on demand by the Facility Agent acting on the
instructions of the Majority Lenders.
Any notice given in accordance with this Subclause will take effect in
accordance with its terms.
34. THE ADMINISTRATIVE PARTIES
34.1 Appointment and duties of the Facility Agent
(a) Each Finance Party (other than the Facility Agent) irrevocably appoints
the Facility Agent to act as its agent under the Finance Documents.
(b) Each Finance Party irrevocably authorises the Facility Agent to:
(i) perform the duties and to exercise the rights, powers
and discretions that are specifically given to it
under the Finance Documents, together with any other
incidental rights, powers and discretions; and
(ii) execute each Finance Document expressed to be
executed by the Facility Agent.
(c) The Facility Agent has only those duties which are expressly specified
in the Finance Documents. Those duties are solely of a mechanical and
administrative nature.
34.2 Role of the Arrangers
Except as specifically provided in the Finance Documents, no Arranger
has any obligations of any kind to any other Party in connection with
any Finance Document.
34.3 No fiduciary duties
Except as specifically provided in a Finance Document, nothing in the
Finance Documents makes an Administrative Party a trustee or fiduciary
for any other Party or any other person. No Administrative Party need
hold in trust any moneys paid to it for a Party or be liable to account
for any interest or profit element on those moneys.
34.4 Individual position of an Administrative Party
(a) If it is also a Lender, each Administrative Party has the same rights
and powers under the Finance Documents as any other Lender and may
exercise those rights and powers as though it were not an
Administrative Party.
(b) Each Administrative Party may:
(i) carry on any business with the Company or its related entities
(including acting as an agent or a trustee for any other
financing); and
(ii) retain any profits or remuneration it receives under the
Finance Documents or in relation to any other business it
carries on with the Company or its related entities.
34.5 Reliance
The Facility Agent may:
(a) rely on any notice or document believed by it to be genuine and correct
and to have been signed by, or with the authority of, the proper
person;
(b) rely on any statement made by any person regarding any matters which
may reasonably be assumed to be within his knowledge or within his
power to verify;
(c) engage, pay for and rely on professional advisers selected by it
(including those representing a Party other than the Facility Agent);
and
(d) act under the Finance Documents through its personnel and agents.
34.6 Super Majority Lenders' and/or the Majority Lenders' instructions
(a) The Facility Agent is fully protected if it acts on the instructions of
the Majority Lenders in the exercise of any right, power or discretion
or any matter not expressly provided for in the Finance Documents. Any
such instructions given by the Majority Lenders will be binding on all
the Lenders. In the absence of instructions, the Facility Agent may act
as it considers to be in the best interests of all the Lenders.
(b) The Facility Agent may assume that unless it has received notice to the
contrary, any right, power, authority or discretion vested in any Party
or the Super Majority Lenders and/or the Majority Lenders has not been
exercised.
(c) The Facility Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal or
arbitration proceedings in connection with any Finance Document.
(d) The Facility Agent may require from the Lenders the receipt of security
satisfactory to it, whether by way of payment in advance or otherwise,
against any liability or loss which it may incur in complying with the
instructions of the Super Majority Lenders and/or the Majority Lenders
as the case may be.
34.7 Responsibility
(a) No Administrative Party is responsible for the adequacy, accuracy or
completeness of any statement or information (whether written or oral)
made in or supplied in connection with any Finance Document.
(b) No Administrative Party is responsible for the legality, validity,
effectiveness, adequacy, completeness or enforceability of any Finance
Document or any other document.
(c) Without affecting the responsibility of the Company for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms that it:
(i) has made, and will continue to make, its own independent
appraisal of all risks arising under or in connection with the
Finance Documents (including the financial condition and
affairs of the Company and its related entities and the nature
and extent of any recourse against any Party or its assets);
and
(ii) has not relied exclusively on any information provided to it
by any Administrative Party in connection with any Finance
Document.
34.8 Exclusion of liability
(a) The Facility Agent is not liable or responsible to any other Finance
Party for any action taken or not taken by it in connection with any
Finance Document, unless directly caused by its gross negligence or
wilful misconduct.
(b) No Party (other than the Facility Agent) may take any proceedings
against any officer, employee or agent of the Facility Agent in respect
of any claim it might have against the Facility Agent or in respect of
any act or omission of any kind by that officer, employee or agent in
connection with any Finance Document. Any officer, employee or agent of
the Facility Agent may rely on this Subclause and enforce its terms
under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
(c) The Facility Agent is not liable for any delay (or any related
consequences) in crediting an account with an amount required under the
Finance Documents to be paid by the Facility Agent if the Facility
Agent has taken all necessary steps as soon as reasonably practicable
to comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Facility Agent for
that purpose.
(d) (i) Nothing in this Agreement will oblige any Administrative Party to
satisfy any know your customer requirement in relation to the identity
of any person on behalf of any Finance Party.
(ii) Each Finance Party confirms to each Administrative Party that
it is solely responsible for any know your customer
requirements it is required to carry out and that it may not
rely on any statement in relation to those requirements made
by any other person.
34.9 Event of Default
(a) The Facility Agent is not obliged to monitor or enquire whether an
Event of Default has occurred. The Facility Agent is not deemed to have
knowledge of the occurrence of a Event of Default.
(b) If the Facility Agent:
(i) receives notice from a Party referring to this Agreement,
describing an Event of Default and stating that the event is
an Event of Default; or
(ii) is aware of the non-payment of any principal, interest or fee
payable to a Finance Party (other than the Facility Agent or
an Arranger) under this Agreement,
it must promptly notify the other Finance Parties.
34.10 Information
(a) The Facility Agent must promptly forward to the person concerned the
original or a copy of any document which is delivered to the Facility
Agent by a Party for that person.
(b) Except where a Finance Document specifically provides otherwise, the
Facility Agent is not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
(c) Except as provided above, the Facility Agent has no duty:
(i) either initially or on a continuing basis to provide any
Lender with any credit or other information concerning the
risks arising under or in connection with the Finance
Documents (including any information relating to the financial
condition or affairs of the Company or its related entities or
the nature or extent of recourse against any Party or its
assets) whether coming into its possession before, on or after
the date of this Agreement; or
(ii) unless specifically requested to do so by a Lender in
accordance with a Finance Document, to request any certificate
or other document from the Company.
(d) In acting as the Facility Agent, the agency division of the Facility
Agent is treated as a separate entity from its other divisions and
departments. Any information acquired by the Facility Agent which, in
its opinion, is acquired by it otherwise than in its capacity as the
Facility Agent may be treated as confidential by the Facility Agent and
will not be treated as information possessed by the Facility Agent in
its capacity as such.
(e) The Facility Agent is not obliged to disclose to any person any
confidential information supplied to it by or on behalf of the Company
solely for the purpose of evaluating whether any waiver or amendment is
required in respect of any term of the Finance Documents.
(f) The Company irrevocably authorises the Facility Agent to disclose to
the other Finance Parties any information which is received by it in
its capacity as the Facility Agent, except for any confidential
information as described in paragraph (e) above.
34.11 Indemnities
(a) Without limiting the liability of the Company under the Finance
Documents, each Lender must indemnify the Facility Agent for that
Lender's Pro Rata Share of any loss or liability incurred by the
Facility Agent in acting as the Facility Agent, except to the extent
that the loss or liability is caused by the Facility Agent's gross
negligence or wilful misconduct.
(b) The Facility Agent may deduct from any amount received by it for a
Lender any amount due to the Facility Agent from that Lender under a
Finance Document but unpaid.
34.12 Compliance
Each Administrative Party may refrain from doing anything (including
disclosing any information) which might in its reasonable opinion,
constitute a breach of any law or regulation or to be otherwise
actionable at the suit of any person and may do anything which is
necessary to comply with any law or regulation.
34.13 Resignation of the Facility Agent
(a) The Facility Agent may resign and appoint any of its Affiliates as
successor Facility Agent by giving notice to the other Finance Parties
and the Company.
(b) Alternatively, the Facility Agent may resign by giving notice to the
Finance Parties and the Company, in which case the Majority Lenders may
appoint a successor Facility Agent.
(c) If no successor Facility Agent has been appointed under paragraph (b)
above within 30 days after notice of resignation was given, the
Facility Agent may appoint a successor Facility Agent.
(d) The person(s) appointing a successor Facility Agent must consult with
the Company prior to the appointment.
(e) The resignation of the Facility Agent and the appointment of any
successor Facility Agent will both become effective only when the
successor Facility Agent notifies all the Parties that it accepts its
appointment and agrees to be bound by the terms of the Finance
Documents in its capacity as Facility Agent. On giving the
notification, the successor Facility Agent will succeed to the position
of the Facility Agent and the term Facility Agent will mean the
successor Facility Agent.
(f) The retiring Facility Agent must, at its own cost, make available to
the successor Facility Agent such documents and records and provide
such assistance as the successor Facility Agent may reasonably request
for the purposes of performing its functions as the Facility Agent
under the Finance Documents.
(g) Upon its resignation becoming effective, this Clause will continue to
benefit the retiring Facility Agent in respect of any action taken or
not taken by it in connection with the Finance Documents while it was
the Facility Agent, and, subject to paragraph (f) above, it will have
no further obligations under any Finance Document.
(h) After consultation with the Company, the Majority Lenders may, by
notice to the Facility Agent, require it to resign under paragraph (b)
above.
34.14 Relationship with Lenders
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and as acting through its Facility
Office(s) until it has received not less than five Business Days' prior
notice from that Lender to the contrary.
(b) The Facility Agent may at any time, and must if requested to do so by
the Majority Lenders, convene a meeting of the Lenders.
(c) The Facility Agent must keep a register of all the Parties and supply
any other Party with a copy of the register on request. The register
will include each Lender's Facility Office(s) and contact details for
the purposes of this Agreement.
34.15 Notice period
Where this Agreement specifies a minimum period of notice to be given
to the Facility Agent, the Facility Agent may, at its discretion,
accept a shorter notice period.
35. EVIDENCE AND CALCULATIONS
35.1 Accounts
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate
for the purpose of any litigation or arbitration proceedings.
35.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or
amount under the Finance Documents will be made in good faith and set
out in reasonable detail the basis of such rate or amount and will be,
in the absence of manifest error, prima facie evidence of the matters
to which it relates.
35.3 Calculations
Any interest or fee accruing under this Agreement accrues from day to
day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days.
36. FEES
36.1 Facility Agent's fee
The Company must pay to the Facility Agent for its own account an
agency fee in the manner agreed in the Fee Letter between the Facility
Agent and the Company.
36.2 Participation fee
The Company must pay to each Mandated Lead Arranger for its own account
a participation fee in the manner agreed in the Fee Letter between the
Mandated Lead Arrangers and the Company.
36.3 Global Coordinators fee
The Company must pay to each Global Coordinators for its own account a
coordination fee in the manner agreed in the Fee Letter between the
Global Coordinators and the Company.
36.4 Commitment fee
(a) The Company must pay a commitment fee to the Facility Agent for the
account of the Lenders computed at the rate of:
(i) 37.5 per cent. per annum of the Margin on the undrawn,
uncancelled amount of each Lender's Tranche A Commitment from
time to time from the Closing Date;
(ii) 37.5 per cent. per annum of the Margin on the undrawn,
uncancelled amount of each Lender's Tranche B Commitment from
time to time from the Closing Date;
(iii) in the case of Tranche C:
(A) 0.25 per cent. per annum on the undrawn, uncancelled
amount of each Lender's Tranche C Commitment from
time to time from the Closing Date until and
including the date of first utilisation of Tranche C;
and
(B) 37.5 per cent. per annum of the Margin on the
undrawn, uncancelled amount of each Lender's Tranche
C Commitment thereafter.
(b) Accrued commitment fee is payable quarterly in arrear. Accrued
commitment fee is also payable to the Facility Agent for a Lender on
the date its Commitment is cancelled in full.
37. INDEMNITIES AND BREAK COSTS
37.1 Currency indemnity
(a) The Company shall, as an independent obligation, indemnify each Finance
Party against any loss or liability specified in a written demand which
that Finance Party incurs as a consequence of:
(i) that Finance Party receiving an amount in respect of the
Company's liability under the Finance Documents; or
(ii) that liability being converted into a claim, proof, judgment
or order,
in a currency other than the currency in which the amount is
expressed to be payable under the relevant Finance Document.
(b) Unless otherwise required by law, the Company waives any right it may
have in any jurisdiction to pay any amount under the Finance Documents
in a currency other than that in which it is expressed to be payable.
37.2 Other indemnities
(a) The Company shall indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(i) the occurrence of any Event of Default;
(ii) any failure by the Company to pay any amount due under a
Finance Document on its due date, including any resulting from
any distribution or redistribution of any amount among the
Lenders under this Agreement;
(iii) (other than by reason of gross negligence or default by that
Finance Party) a Loan not being made after a Request has been
delivered for that Loan; and
(iv) a Loan (or part of a Loan) not being prepaid in accordance
with this Agreement.
The Company's liability in each case includes any loss or
expense on account of funds borrowed, contracted for or
utilised to fund any amount payable under any Finance Document
or any Loan.
(b) The Company must indemnify the Facility Agent against any loss or
liability incurred by the Facility Agent as a result of:
(i) investigating any event which the Facility Agent reasonably
believes to be an Event of Default; or
(ii) acting or relying on any notice which the Facility Agent
reasonably believes to be genuine, correct and appropriately
authorised.
37.3 Break Costs
(a) The Company must pay to each Lender its Break Costs in the event of any
Loan or overdue amount being repaid or prepaid on a day other than the
last day of the Term applicable to that amount.
(b) Break Costs are the amount (if any) determined by the relevant Lender
by which:
(i) the interest (excluding Margin) which that Lender would have
received for the period from the date of receipt of all or any
part of its share in a Loan or an overdue amount to the last
day of the applicable Term for that Loan or overdue amount if
the principal or overdue amount received had been paid on the
last day of that Term;
exceeds
(ii) the amount which that Lender would be able to obtain by
placing an amount equal to all or any part of its share in a
Loan or an overdue amount received by it on deposit with a
leading bank in the European interbank market for a period
starting on the date of receipt and ending on the last day of
the applicable Term.
(c) Each Lender must supply to the Facility Agent for the Company details
of the amount of any Break Costs claimed by it under this Subclause.
38. EXPENSES
38.1 Initial costs
The Company must pay to each Administrative Party within 30 days from
demand the amount of all legal fees reasonably incurred by it in
connection with the negotiation, preparation, printing and execution of
the Finance Documents up to an amount specified in a letter from ▇▇▇▇▇
& Overy to the Company dated 26 November, 2004.
38.2 Subsequent costs
The Company must pay to the Facility Agent the amount of all costs and
expenses (including legal fees) reasonably incurred by it in connection
with:
(a) the negotiation, preparation, printing and execution of any
Finance Document (other than a Transfer Certificate) executed
after the date of this Agreement; and
(b) any amendment, waiver or consent requested by or on behalf of
the Company.
38.3 Enforcement costs
The Company must pay to each Finance Party the amount of all
(a) costs and expenses (including legal fees) incurred by it in
connection with the enforcement of any Finance Document; and
(b) all reasonable costs and expenses (including legal fees)
incurred by it in connection with the preservation of any
rights under any Finance Document.
39. AMENDMENTS AND WAIVERS
39.1 Procedure
(a) Except as otherwise provided in this Clause, any term of the Finance
Documents may be amended or waived with the agreement of the Company
and the Majority Lenders. The Facility Agent may effect, on behalf of
any Finance Party, an amendment or waiver allowed under this Clause.
(b) The Facility Agent must promptly notify the other Parties of any
amendment or waiver effected by it under paragraph (a) above. Any such
amendment or waiver is binding on all the Parties.
39.2 Exceptions
(a) An amendment or waiver which relates to:
(i) The definition of Company (save in case of any of any merger
which is not prohibited pursuant to Clause 32.4 (Mergers));
(ii) the definitions of the Super Majority Lenders and/or the
Majority Lenders in Clause 15.1 (Definitions);
(iii) an extension of the date of payment of any amount to a Lender
under this Agreement;
(iv) a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fee or other amount payable to
a Lender under this Agreement;
(v) an increase in, or an extension of, a Commitment or the Total
Commitments, or currency of utilisation;
(vi) a term of a Finance Document which expressly requires the
consent of each Lender; or
(vii) this Clause,
may only be made with the consent of all the Lenders.
(b) An amendment or waiver which relates to:
(i) Clauses 18.2(b) (Conditions precedent to first utilisation
under Tranche A and Tranche B) and Clause 18.3(b) (Conditions
precedent to first utilisation under Tranche C)
(ii) Clauses 21.1 (Mandatory prepayment - illegality) and 21.3
(Mandatory prepayment - change of control);
(iii) Clause 21.4 (Mandatory prepayment for VTL requirement);
(iv) Clause 31.3 (Net financial position);
(v) a release or amendment of any Security Agreement other than in
accordance with the terms of this Agreement;
(vi) Clause 33.2 (Non-payment);
(vii) Clause 33.5 (Cross-default);
(viii) Clause 33.12 (Acceleration); or
(ix) Clause 40.2 (Assignments and transfers by Lenders) or the
right of a Lender to assign or transfer its rights or
obligations under the Finance Documents,
may only be made with the consent of all the Super Majority
Lenders.
(c) An amendment or waiver which relates to the rights or obligations of an
Administrative Party may only be made with the consent of that
Administrative Party.
(d) A Fee Letter may be amended or waived with the agreement of the
Administrative Party that is a party to that Fee Letter and the
Company.
39.3 Change of currency
If a change in any currency of a country occurs (including where there
is more than one currency or currency unit recognised at the same time
as the lawful currency of a country), this Agreement will be amended to
the extent the Facility Agent (acting reasonably and after consultation
with the Company) determines is necessary to reflect the change.
39.4 Waivers and remedies cumulative
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of
that right.
40. CHANGES TO THE PARTIES
40.1 Assignments and transfers by the Company
The Company may not assign or transfer any of its rights and
obligations under the Finance Documents without the prior consent of
all the Lenders.
40.2 Assignments and transfers by Lenders
(a) A Lender (the Existing Lender) may, subject to the following provisions
of this Subclause, at any time after the date falling 12 months from
the Closing Date assign or transfer (including by way of novation) any
of its rights and obligations under this Agreement to any other bank or
financial institution (the New Lender).
(b) Unless the Company and the Facility Agent otherwise agree, a transfer
of part of a Commitment or rights and obligations under this Agreement
by the Existing Lender must be in a minimum amount of 'E'50,000,000
and must be pro rata across all Tranches of the Facility.
(c) Unless the Company otherwise agrees, each of the Original Lenders must
retain, and may not assign or transfer:
(i) 75 per cent of their original Commitment (and Loans made under
that percentage of its original Commitment) for the period
between 12 months from the Closing Date and 18 months from the
Closing Date; and
(ii) 50 per cent. of their original Commitment (and Loans made
under that percentage of its original Commitment) from the
date falling 18 months from the Closing Date.
(d) The consent of the Company is required for any assignment or transfer
unless the New Lender is another Lender or an Affiliate of a Lender or
an Event of Default is outstanding (in which latter case an assignment
or transfer may only be effected without consent if three Business
Days' prior written notice is given to the Company and that notice
specifies in reasonable detail the New Lender's name and address). The
consent of the Company must not be unreasonably withheld or delayed.
The Company will be deemed to have given its consent ten Business Days
after the Company is given notice of the request unless it is expressly
refused within that time.
(e) The Facility Agent is not obliged to execute a Transfer Certificate
until it has completed all know your customer requirements to its
satisfaction. The Facility Agent must promptly notify the Existing
Lender and the New Lender if there are any such requirements.
(f) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with the following
provisions of this Clause; or
(ii) the New Lender confirms to the Facility Agent and the Company
in form and substance satisfactory to the Facility Agent and
the Company that it is bound by the terms of this Agreement as
a Lender. On the transfer becoming effective in this manner
the Existing Lender will be released from its obligations
under this Agreement to the extent that corresponding
obligations are validly assumed by the New Lender.
(g) Unless the Facility Agent otherwise agrees, the New Lender must pay to
the Facility Agent for its own account, on or before the date any
assignment or transfer occurs, a fee of 'E'1,000.
(h) Any reference in this Agreement to a Lender includes a New Lender but
excludes a Lender if no amount is or may be owed to or by it under this
Agreement.
40.3 Procedure for transfer by way of novations
(a) In this Subclause:
Transfer Date means, for a Transfer Certificate, the later of:
(a) the proposed Transfer Date specified in that Transfer
Certificate; and
(b) the date on which the Facility Agent executes that
Transfer Certificate.
(b) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the Facility
Agent a duly completed Transfer Certificate;
(ii) the Facility Agent executes it; and
(iii) subject to Clause 40.2(d) the Company countersigns it
confirming its acceptance only where the consent of the
Company to such transfer is required pursuant to the terms of
this Agreement unless that consent is deemed to have been
given.
The Facility Agent must execute as soon as reasonably practicable a
Transfer Certificate delivered to it and which appears on its face to
be in order.
(c) Each Party (other than the Existing Lender and the, save where the
Company is required to countersign for the purposes of (b)(iii) New
Lender) irrevocably authorises the Facility Agent to execute any duly
completed Transfer Certificate on its behalf.
(d) On the Transfer Date:
(i) the New Lender will assume the rights and obligations of the
Existing Lender expressed to be the subject of the novation in
the Transfer Certificate in substitution for the Existing
Lender; and
(ii) the Existing Lender will be released from those obligations
and cease to have those rights.
(e) The Facility Agent must, as soon as reasonably practicable after it has
executed a Transfer Certificate, send to the Company a copy of that
Transfer Certificate.
40.4 Limitation of responsibility of Existing Lender
(a) Unless expressly agreed to the contrary, an Existing Lender is not
responsible to a New Lender for the legality, validity, adequacy,
accuracy, completeness, performance, effectiveness or enforceability
of:
(i) any Finance Document or any other document;
(ii) the financial condition of the Borrower;
(iii) any statement or information (whether written or oral) made in
or supplied in connection with any Finance Document; or
(iv) non-performance by the Company of its obligations under any
Finance Document or otherwise,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made, and will continue to make, its own independent
appraisal of all risks arising under or in connection with the
Finance Documents (including the financial condition and
affairs of the Company and its related entities and the nature
and extent of any recourse against any Party or its assets) in
connection with its participation in this Agreement; and
(ii) has not relied exclusively on any information supplied to it
by the Existing Lender in connection with any Finance
Document.
(c) Nothing in any Finance Document requires an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause; or
(ii) support any losses incurred by the New Lender by reason of the
non-performance by the Company of its obligations under any
Finance Document or otherwise.
40.5 Costs resulting from change of Lender or Facility Office
If:
(a) a Lender assigns or transfers any of its rights and
obligations under the Finance Documents or changes its
Facility Office; and
(b) as a result of circumstances existing at the date the
assignment, transfer or change occurs, the Company would be
obliged to pay a Tax Payment or an Increased Cost,
then, unless the assignment, transfer or change is made by a Lender to
mitigate, with the prior written consent of the Company, any
circumstances giving rise to a Tax Payment, Increased Cost or right to
be prepaid and/or cancelled by reason of illegality, the Company need
only pay that Tax Payment or Increased Cost to the same extent that it
would have been obliged to if no assignment, transfer or change had
occurred.
41. DISCLOSURE OF INFORMATION
(a) Each Finance Party must keep confidential any information supplied to
it by or on behalf of the Company for the purpose of or in connection
with the Finance Documents including any information provided to the
Mandated Lead Arrangers prior to the date of this Agreement in
connection with the making available of this Facility. However, a
Finance Party is entitled to disclose information:
(i) which is publicly available, other than as a result of a
breach by that Finance Party of this Clause;
(ii) in connection with any legal or arbitration proceedings
against the Company;
(iii) if and to the extent required to do so under any law or
regulation or by a court;
(iv) to a governmental, banking, taxation or other regulatory
authority where it is required to make the disclosure;
(v) to its professional advisers for purposes connected with the
Finance Documents and only where those advisers are under a
duty of confidentiality and are aware that the information
provided to them is confidential;
(vi) to the extent allowed under paragraph (b) below; or
(vii) with the agreement of the Company.
(b) A Finance Party may disclose to an Affiliate or any person with whom it
may enter, or has entered into, any kind of transfer, participation or
other agreement in relation to this Agreement (a participant):
(i) a copy of any Finance Document; and
(ii) any information which that Finance Party has acquired under or
in connection with any Finance Document.
However, before a participant may receive any confidential information,
it must agree with the relevant Finance Party, and for the benefit of
the Company, to keep that information confidential on the terms of
paragraph (a) above.
(c) This Clause supersedes any previous confidentiality undertaking given
by a Finance Party in connection with this Agreement prior to it
becoming a Party.
42. SET-OFF
42.1 Contractual set-off
The Company authorises each Lender at any time whilst an Event of
Default is continuing to apply any matured credit balance held in cash
to which the Company is entitled on any of its accounts with such
Lender in satisfaction of any sum due and payable by the Company to
such Lender under this Agreement but unpaid. For this purpose, each
Lender is authorised to purchase at market rate with the moneys
standing to the credit of any such account such other currencies as may
be necessary to effect such application. Any Lender exercising its
rights under this Clause shall notify the Company promptly after
set-off is applied.
42.2 Set-off not mandatory
No Lender shall be obliged to exercise any right given to it by Clause
42.1 (Contractual set-off).
43. PRO RATA SHARING
43.1 Redistribution
If any amount owing by the Company under this Agreement to a Lender
(the recovering Lender) is discharged by payment, set-off or any other
manner other than through the Facility Agent under this Agreement (a
recovery), then:
(a) the recovering Lender must, within three Business Days, supply
details of the recovery to the Facility Agent;
(b) the Facility Agent must calculate whether the recovery is in
excess of the amount which the recovering Lender would have
received if the recovery had been received and distributed by
the Facility Agent under this Agreement; and
(c) the recovering Lender must pay to the Facility Agent an amount
equal to the excess (the redistribution).
43.2 Effect of redistribution
(a) The Facility Agent must treat a redistribution as if it were a payment
by the Company under this Agreement and distribute it among the
Lenders, other than the recovering Lender, accordingly.
(b) When the Facility Agent makes a distribution under paragraph (a) above,
the recovering Lender will be subrogated to the rights of the Finance
Parties which have shared in that redistribution.
(c) If and to the extent that the recovering Lender is not able to rely on
any rights of subrogation under paragraph (b) above, the Company will
owe the recovering Lender a debt which is equal to the redistribution,
immediately payable and of the type originally discharged.
(d) If:
(i) a recovering Lender must subsequently return a recovery, or an
amount measured by reference to a recovery, to the Company;
and
(ii) the recovering Lender has paid a redistribution in relation to
that recovery,
each Finance Party must reimburse the recovering Lender all or the
appropriate portion of the redistribution paid to that Finance Party,
together with interest for the period while it held the redistribution.
In this event, the subrogation in paragraph (b) above will operate in
reverse to the extent of the reimbursement and the obligations of the
Company under this sub-clause will be adjusted accordingly.
43.3 Exceptions
Notwithstanding any other term of this Clause, a recovering Lender need
not pay a redistribution to the extent that:
(a) it would not, after the payment, have a valid and enforceable
claim against the Company in the amount of the redistribution;
or
(b) it would be sharing with another Finance Party any amount
which the recovering Lender has received or recovered as a
result of legal or arbitration proceedings, where:
(i) the recovering Lender notified the other Finance
Party and/or Facility Agent of those proceedings; and
(ii) the other Finance Party had an opportunity to
participate in those proceedings but did not do so or
did not take separate legal or arbitration
proceedings as soon as reasonably practicable after
receiving notice of them.
44. SEVERABILITY
If a term of a Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that will not affect:
(a) the legality, validity or enforceability in that jurisdiction
of any other term of the Finance Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other term of the Finance
Documents.
45. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts.
This has the same effect as if the signatures on the counterparts were
on a single copy of the Finance Document.
46. NOTICES
46.1 In writing
(a) Any communication under or in connection with a Finance Document must
be in writing and, unless otherwise stated, may be given:
(i) in person, by post, fax, e-mail or any other electronic
communication approved by the Facility Agent and the Company;
or
(ii) if between the Facility Agent and a Lender and the Facility
Agent and the Lender agree, by e-mail or other electronic
communication.
(b) For the purpose of the Finance Documents, an electronic communication
will be treated as being in writing.
(c) Unless it is agreed to the contrary, any consent or agreement required
under a Finance Document must be given in writing.
46.2 Contact details
(a) Except as provided below, the contact details of each Party for all
communications in connection with the Finance Documents are those
notified by that Party for this purpose to the Facility Agent on or
before the date it becomes a Party.
(b) The contact details of the Company for this purpose are:
Olimpia S.p.A.
Address: ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇
Fax number: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
(c) The contact details of the Facility Agent for this purpose are:
Banca di Roma S.p.A. - Sede di Milano
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇
Fax number: ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇; ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇
Attention: Messrs. ▇▇▇▇▇▇▇ Giambitto / ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(d) Any Party may change its contact details by giving five Business Days'
notice to the Facility Agent or (in the case of the Facility Agent) to
the other Parties.
(e) Where a Party nominates a particular department or officer to receive a
communication, a communication will not be effective if it fails to
specify that department or officer.
46.3 Effectiveness
(a) Except as provided below, any communication in connection with a
Finance Document will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
(ii) if posted, when received by the recipient as shown in the
return receipt;
(iii) if by fax, when received in legible form; and
(iv) if by e-mail or any other electronic communication, when
received in legible form.
(b) A communication given under paragraph (a) above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
(c) A communication to the Facility Agent will only be effective on actual
receipt by it.
46.4 The Company
All formal communication under the Finance Documents to or from the
Company must be sent through the Facility Agent.
47. LANGUAGE
(a) Any notice given in connection with a Finance Document must be in
English.
(b) Except where expressly provided otherwise in this Agreement, any other
document provided in connection with a Finance Document must be:
(i) in English; or
(ii) in Italian.
48. GOVERNING LAW
This Agreement is governed by English law.
49. ENFORCEMENT
49.1 Jurisdiction
(a) The English courts have exclusive jurisdiction to settle any dispute in
connection with any Finance Document (including a dispute regarding the
existence, validity or termination of any Finance Document).
(b) The English courts are the most appropriate and convenient courts to
settle any such dispute and the Company waives objection to those
courts on the grounds of inconvenient forum or otherwise in relation to
proceedings in connection with any Finance Document.
(c) This Clause is for the benefit of the Finance Parties only. To the
extent allowed by law, the Finance Parties may take:
(i) proceedings in any other court; and
(ii) concurrent proceedings in any number of jurisdictions.
49.2 Service of process
(a) The Company irrevocably appoints Pirelli International Limited as its
agent under the Finance Documents for service of process in any
proceedings before the English courts.
(b) If any person appointed as process agent is unable for any reason to
act as agent for service of process, the Company must immediately
appoint another agent on terms acceptable to the Facility Agent.
Failing this, the Facility Agent may appoint another agent for this
purpose.
(c) The Company agrees that failure by a process agent to notify it of any
process will not invalidate the relevant proceedings.
(d) This Clause does not affect any other method of service allowed by law.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
ALLEGATO 1
ORIGINAL PARTIES
Name of Original Lender Commitments
Column 1 Column 2 Column 3 Column 4 Column 5
Tranche A Tranche B Tranche C Total
Banca Intesa S.p.A 'E' 437,500,000 'E' 14,583,333 'E' 47,916,667 'E' 500,000,000
Banca di Roma S.p.A. 'E' 371,875,000 'E' 12,395,833 'E' 40,729,167 'E' 425,000,000
Bipop Carire S.p.A. 'E' 8,750,000 'E' 291,667 'E' 958,333 'E' 10,000,000
Banco di Sicilia S.p.A. 'E' 17,500,000 'E' 583,333 'E' 1,916,667 'E' 20,000,000
IRFIS Mediocredito della 'E' 4,375,000 'E'145,833 'E' 479,167 'E' 5,000,000
Sicilia S.p.A.
MCC S.p.A. 'E' 35,000,000 'E' 1,166,667 'E' 3,833,333 'E' 40,000,000
Unicredit Banca d'Impresa 'E' 437,500,000 'E' 14,583,333 'E' 47,916,667 'E' 500,000,000
S.p.A.
Calyon S.A. Succursale di 'E' 306,250,000 'E' 10,208,333 'E' 33,541,667 'E' 350,000,000
Milano
Morgan ▇▇▇▇▇▇▇ Bank 'E' 306,250,000 'E' 10,208,334 'E' 33,541,666 'E' 350,000,000
International Limited,
Milan Branch
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ European -- -- -- --
Funding, Inc.
Societe Generale, 'E' 175,000,000 'E' 5,833,334 'E' 19,166,666 'E' 200,000,000
Succursale di Milano
Total Commitments 'E'2,100,000,000 'E'70,000,000 'E'230,000,000 'E'2,400,000,000
ALLEGATO 2
CONDITIONS PRECEDENT DOCUMENTS
Company
2. A copy of the constitutional documents of the Company (which may be
provided in original language).
3. A copy of a resolution of the board of directors of the Company (which
may be provided in original language);
(i) approving the terms of, and the transactions contemplated by,
the Finance Documents to which it is a party and resolving
that it execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including, if
relevant, any Request) to be signed and/or despatched by it
under or in connection with the Finance Documents to which it
is a party.
4. A specimen of the signature of each person authorised on behalf of the
Company to execute or witness the execution of any Finance Document or
to sign or send any document or notice in connection with any Finance
Document.
5. A certificate of the Head of Pirelli Finance Legal Department
certifying that each copy document specified in this Schedule is
correct, complete and in full force and effect as at a date no earlier
than the date of this Agreement.
6. Certificato di vigenza for the Company including a non-insolvency
statement.
7. Evidence that the agent of the Company under the Finance Documents for
service of process in England has accepted its appointment.
Security document(s)
1. Evidence that the original Security Agreements listed in Allegato 6
(Security Agreements), paragraph (a), will be duly executed promptly
upon the first Utilisation..
2. Evidence that registration of the original Security Agreement listed in
Allegato 6 (Security Agreements), paragraph (a), will occur promptly
following the first Utilisation Date..
3. Evidence that any existing Security Interest on the assets which are
the subject of the Security Agreement referred to in paragraph 1 above
has been or will be released on or before the first Utilisation Date
(subject to the registration requirements referred to paragraph (2)
above being complied with) and that all Financial Indebtedness secured
by that Security Interest will, have
been irrevocably and unconditionally repaid and discharged in full on
or before the first Utilisation Date.
Legal opinions
A legal opinion of ▇▇▇▇▇ & Overy, Studio Legale Associato, as to matters of
English and Italian law addressed to the Finance Parties.
Other documents and evidence
Evidence that all fees due and payable before the Closing Date from the Company
under the Finance Documents have been or will be paid by the first Utilisation
Date.
ALLEGATO 3
FORM OF REQUEST
To: [AGENT] as Facility Agent
From: [ ]
Date: [ ]
OLIMPIA S.p.A. 'E'2,400,000,000 Credit Agreement
dated 12th January, 2005 (the Agreement)
1. We refer to the Agreement. This is a Request. Terms defined in the
Agreement have the same meaning in this Request unless given a
different meaning in this Request.
2. We wish to borrow a Loan on the following terms:
(iv) Utilisation Date: [ ]
(v) Tranche: [ ]
(vi) Amount/currency: [ ]
(vii) Term: [ ].
3. Our payment instructions are: [ ].
4. We confirm that each condition precedent under the Agreement which must
be satisfied on the date of this Request is so satisfied.
5. This Request is irrevocable.
By:
[ ]
ALLEGATO 4
FORM OF TRANSFER CERTIFICATE
To: [AGENT] as Facility Agent
From: [THE EXISTING LENDER] (the Existing Lender) and [THE NEW LENDER] (the
New Lender)
Date: [ ]
OLIMPIA S.p.A. 'E'2,400,000,000 Credit Agreement
dated 12th January, 2005 (the Agreement)
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the
Agreement have the same meaning in this Transfer Certificate unless given a
different meaning in this Transfer Certificate.
1. The Existing Lender transfers by novation to the New Lender the
Existing Lender's rights and obligations referred to in the Schedule
below in accordance with the terms of the Agreement.
2. The proposed Transfer Date is [ ].
3. The administrative details of the New Lender for the purposes of the
Agreement are set out in the Schedule.
4. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 40.4
(Limitation of responsibility of Existing Lender).
5. This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts
were on a single copy of this Transfer Certificate.
6. This Transfer Certificate is governed by English law.
THE SCHEDULE
Rights and obligations to be transferred by novation
[insert relevant details, including applicable Commitment (or part)]
Administrative details of the New Lender
[insert details of Facility Office, address for notices and
payment details etc.]
[EXISTING LENDER] [NEW LENDER]
By: By:
The Transfer Date is confirmed by the Facility Agent as [ ].
[AGENT]
By:
Countersigned by way of acceptance (2)
By The Company/The Facility Agent
on behalf of the Company
_________________
(2) Only to the extent required by the Agreement. The company will need to
countersign to acknowledge continuation of security post transfer.
ALLEGATO 5
FORM OF COMPLIANCE CERTIFICATE
To: [AGENT] as Facility Agent
From: OLIMPIA S.p.A.
Date: [ ]
OLIMPIA S.p.A. 'E'2,400,000,000 Credit Agreement
dated 12th January, 2005 (the Agreement)
1. We refer to the Agreement. This is a Compliance Certificate. Terms
defined in the Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this
Compliance Certificate.
2. We confirm that as at [the date of the financial statements delivered
together with this compliance certificate]/[ ], Net Financial
Position is [o].
3. The figures set out in paragraph 2 above are calculated as follows:
[o]
OLIMPIA S.p.A.
By:
[insert applicable certification language]
ALLEGATO 6
SECURITY AGREEMENTS
(b) A first ranking pledge over TI Shares, TI Convertible Bonds and /or TI
Warrants in favour of the Lenders.
(c) A first ranking pledge over any additional Collateral in favour of the
Lenders.
ALLEGATO 7
RELEASE CERTIFICATE
RELEASE CERTIFICATE
From: Olimpia S.p.A
To: Facility Agent
[Date]
Dear Sirs,
Request for Collateral release
(b) We refer to the revolving credit facility agreement (the Facility
Agreement) dated [o] (as amended) whereby a 'E'2.4 billion revolving
loan facility was made available to Olimpia S.p.A. as borrower by a
group of lenders on whose behalf you act as agent in connection
therewith. Terms defined in the Facility Agreement shall have the same
meaning in this notice.
4. We hereby certify to you that
(i) VTL (calculated in accordance with the provisions of Clause
21.8 as at the Calculation Date immediately preceding the date
hereof) is equal to or greater than 140 per cent.;
(ii) no Event of Default has occurred and is continuing and all
other applicable provisions of Clause 21.8 (Optional reduction
of Collateral) have been complied with; and
(iii) all Repeating Representations are true in all material
respects on and as of the date hereof, reference to the facts
and circumstances subsisting as at the date hereof.
5. We hereby request that an amount equal to [[ ]
shares/warrants/convertible bonds] in Telecom Italia S.p.A. be released
from the pledge agreement entered into by us on [ ], such that the VTL
[(calculated in accordance with the provisions of Clause 21.8 following
such release shall be 130 per cent.
6. We hereby acknowledge and agree that this Release Certificate shall
constitute a Finance Document for the purposes of the Facility
Agreement.
Kindly acknowledge receipt of this letter.
Yours faithfully
...................
for and on behalf of
Olimpia S.p.A.
SIGNATORIES
Company
OLIMPIA S.p.A.
By:
Mandated Lead Arrangers
Banca Intesa S.p.A.
By:
MCC S.p.A.
By:
UniCredit Banca Mobiliare S.p.A.
By:
Calyon S.A. Succursale di Milano
By:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank International Limited, Milan Branch
By:
Societe Generale, Succursale di Milano
By:
Original Lenders
Banca Intesa S.p.A.
By:
Banca di Roma S.p.A.
By:
Bipop Carire S.p.A.
By:
Banco di Sicilia S.p.A.
By:
IRFIS Mediocredito ▇▇▇▇▇ ▇▇▇▇▇▇▇ S.p.A.
By:
MCC S.p.A.
By:
Unicredit Banca d'Impresa S.p.A.
By:
Calyon S.A. Succursale di Milano
By:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank International Limited, Milan Branch
By:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ European Funding, Inc
By:
Societe Generale, Succursale di Milano
By:
Facility Agent
Banca di Roma S.p.A.
By: