EXHIBIT 95
PLEDGE DOCUMENT FOR DEMATERIALIZED SHARES
MARCH 20, 2006
STIPULATED BETWEEN
OLIMPIA S.P.A.
(the Constituent)
and
BANCA DI ROMA S.P.A.
(the Agent)
and
THE FINANCING BANKS
(the Original Lenders)
and
BANCA DI ROMA S.P.A.
(the Depositary)
▇▇▇▇▇ & ▇▇▇▇▇
ASSOCIATED LAW OFFICES
MILAN
TABLE OF CONTENTS
ARTICLES PAGE
1. Interpretation.......................................................................................6
2. Guarantee............................................................................................8
3. Obligations Guaranteed..............................................................................10
4. Fulfillment of the Pledge...........................................................................10
5. Voting Rights and Related Rights....................................................................10
6. Rights Related to Warrants and Convertible Bonds....................................................11
7. Settlement of the Pledge............................................................................11
8. Declarations and Warranties.........................................................................13
9. Obligations of the Constituent......................................................................14
10. Extinction and Cancellation of the Pledge...........................................................15
11. Indemnity, Taxes, Costs, and Expenses...............................................................16
12. Communications .....................................................................................16
13. Miscellaneous Stipulations..........................................................................18
14. Regulatory Laws and Legal Jurisdiction..............................................................19
Signers of the Document......................................................................................20
ADDENDA
1. Description of the Loan.............................................................................22
2. Text of the Annotations in the Book of Shareholders of the Company..................................24
DOCUMENT SUMMARIZING THE PRINCIPAL CONTRACTUAL CONDITIONS
OF THE PLEDGE DOCUMENT ON SHARES DATED JANUARY 20, 2005
This summary document, written in accordance with Article 9.1 of the CICR
Decision of March 4, 2003, and subsequent Oversight Instructions of the Bank of
Italy, does not in any way replace the contents of the Pledge Document on Shares
dated March 20, 2006(hereinafter referred to as the PLEDGE DOCUMENT).
The terms beginning capital letters in this summary document have the same
meaning attributed to them in the Pledge Document.
S E C T I O N 1
THE INFORMATION IN THIS SECTION CALLS TO THE ATTENTION OF THE CONSTITUENT
THE PRINCIPAL ECONOMIC CONDITIONS OF THE TRANSACTION.
FEES OR EXPENSES TO BE PAID BY THE CONSTITUENT: the Constituent is responsible
for the following fees or expenses: (i) the costs deriving from the fulfillment
of the pledges discussed in Article 9 (Pledges of the Constituent) of the Pledge
Document; (ii) the costs and expenses deriving from the extinction and
cancellation of the pledge in accordance with Article 10 (Extinction and
Cancellation of the Pledge); and (iii) the taxes, costs, expenses, and indemnity
discussed in Article 11 (Indemnity, Taxes, Costs, and Expenses) of the Pledge
Document.
S E C T I O N 2
THE INFORMATION IN THIS SECTION CALLS TO THE ATTENTION OF THE CONSTITUENT
THE CLAUSES CONTAINED IN THE PLEDGE DOCUMENT, EVEN THOSE THAT ARE NOT
SPECIFICALLY ECONOMIC.
ARTICLE 1 - This article identifies and interprets the terms used in the Pledge
Document.
ARTICLE 2 - This article establishes that the Constituent irrevocably
constitutes a first degree pledge in favour of the Guaranteed Credit in respect
to the Object of the Pledge. In addition: (i) it establishes that the Pledge
shall automatically be extended from time to time to all the future shares
issued and assigned by the Company to the Constituent for free increases in the
capital of the Company, and to the rights related to them that the Constituent
might hold from time to time in the Company; (ii) the article also establishes
that if certain conditions discussed in the Loan Contract should take place, the
Constituent may constitute or shall have the obligation of constituting
additional Collateral as a Pledge to the Guaranteed Creditor; and (iii) the
article also establishes the method of fulfillment of the Pledge on the newly
issued shares and/or on the additional Collateral.
ARTICLE 3 - This article establishes that the Object of the Pledge is
constituted as a first degree Pledge issued in favour of the Guaranteed Creditor
as a guarantee for the Guaranteed Obligations.
ARTICLE 4 - This article establishes the method of fulfillment of the Pledge. In
particular, the Constituent hereby agrees to ensure that the Depositary, who
also agrees in this sense, in respect to the Company, and the Constituent
perform all the acts necessary to fulfill the pledge according to the terms
established in the Pledge Document. This article also establishes that (i) the
constitution of the Pledge will be duly noted in the Book of Shareholders of the
Company using the formula presented in Addendum 2, Part 1 to the Pledge
Document; and that (ii) the Depositary must issue, on the request of those
having voting rights - the certificates necessary to exercise the respective
rights related to the Shares.
ARTICLE 5 - This article establishes that: (i) until the communication on the
part of the Agent of the occurrence of a Significant Event, (A) the voting
rights and the administrative rights associated with the Shares shall remain
with the Constituent, who must exercise them in accordance with the terms
indicated therein; and (B) the Constituent shall have the right to receive all
the Dividends; (ii) when the Significant Event shall occur, the Guaranteed
Creditor, acting through the Agent, shall have the right to exercise the voting
rights and the administrative rights associated with the Shares both in the
ordinary assembly and in the Extraordinary Assembly of Shareholders of the
Company and to receive all the Dividends; and (iii) the Constituent shall waive
the right to contest the fact or to take any action regarding the legitimate
right of the Agent to exercise the rights discussed in point (ii) above.
ARTICLE 6 - This article establishes the regulations that will be applied in the
event that the Constituent must or has the intention of constitute a pledge of
Warrants or Convertible Bonds in favour of the Guaranteed Creditor.
ARTICLE 7 - This article establishes the terms of settlement of the Pledge.
ARTICLE 8 - The Constituent makes several declarations and guarantees in favour
of the Guaranteed Creditor.
ARTICLE 9 - This article establishes the undertakings that the Constituent must
fulfill.
ARTICLE 10 - This article establishes the method of extinction and cancellation
of the Pledge. In particular, it establishes that the Pledge will be released by
the Guaranteed Creditor at the expiration of the Guaranteed Period upon request
and with all expenses paid by the Constituent. In addition, the article
establishes that in the event of the complete and unconditioned fulfillment of
the Guaranteed Obligations, upon written request of the Constituent for the full
release of the Pledge, the Guaranteed Creditor will consent, through the Agent,
to the full release of the Pledge before the expiration of the Guaranteed
Period, on the condition that the Company has handed over to the Agent, and the
form and contents are considered satisfactory by the Agent, all the
documentation indicated therein. Finally, the article establishes the method of
partial release of the Pledge.
ARTICLE 11 - This article defines: (i) the responsibility of the Guaranteed
Creditor, the Agent, and the Depositary, who will not be responsible, except in
the event that they have acted with wiilful misconduct or gross negligence, for
damages caused to the Company or to the Constituent as a result of the exercise
or the failure to exercise the rights, actions, or measures which they have the
right to exercise in accordance with the Pledge Document; (ii) the taxes,
duties, expenses, and costs shall be paid exclusively by the Constituent; and
(iii) the indemnity that the Constituent is held to pay to the Agent, the
Guaranteed Creditor, and the Depositary.
ARTICLE 12 - This article establishes: (i) the manner in which communications
shall be made in accordance with the Pledge Document; (ii) the addresses to
which these communications must be sent; (iii) the measures to be taken in the
event of a change of address on the part of one of the parties; and (iv) the
selection of legal domicile on the part of the Constituent.
ARTICLE 13 - This article establishes various measures, and in particular (i) it
indicates the manner in which the Guaranteed Creditor may exercise or waive its
rights deriving from the Pledge Document; (ii) it defines the manner in which
the parties to the Pledge Document may modify the terms of the document or waive
the rights arising from this document; (iii) it establishes that the right of
guarantee constituted through the Pledge Document is added to and shall not
2
affect the other guarantee rights which the Guaranteed Creditor may hold now or
shall hold in reference to the Guaranteed Bonds; (iv) it establishes that: (A)
the Pledge Document shall be binding for the Constituent, his successors,
transferees, or those exercising rights thereto even in the event of a Sale,
and, in this regard, the Parties to the Pledge Document expressly agree in
accordance with Article 1232 of the civil code, on the continuation of the
Pledge in the event of a Sale; (B) the Constituent hereby agrees to confirm in
writing, if requested by the Agent, to give his own consent to the continuation
of the Pledge; (C) this article also establishes the formalities which the
Constituent and the Company must fulfill in of a Sale deed; and (D) all the
taxes, duties, expenses, costs, and withholdings, or similar fees which are due
or which might become due in relation to each Sale, will be incurred in
accordance with the terms of the Loan Contract; (v) the article establishes that
the rights, the actions, and the measures established by the Pledge document in
favour of the Guaranteed Creditor shall be added to and shall not exclude any
additional rights, actions, or measures of which the Guaranteed Creditor is the
holder on the basis of the contract or in accordance with law; (vi) the
Constituent hereby agrees to act in such a way that within 5 (five) business
days from the stipulation of the Pledge Document, the Company should be aware of
and accept the Pledge in the terms established therein; and (vii) the article
establishes that in the event that one or more stipulations of the Pledge
Document should be or should be invalid, ineffective, or not actionable, this
will not affect the validity, effectiveness and actionability of the other
stipulations of the Pledge Document.
ARTICLE 14 - It is hereby established that Italian law shall regulate the Pledge
Document and that the Court of Milan shall have exclusive legal jurisdiction
over any dispute arising in relation to the Pledge Document, notwithstanding the
right of the Guaranteed Creditor to bring legal suit against the Constituent
before any competent legal authorities.
3
THIS PLEDGE DOCUMENT was stipulated in London, on March 20, 2006, among the
following parties:
(1) OLIMPIA S.P.A., a company operating under Italian law and with legal
offices in Milan, Viale Sarca no. 222, Tax Identification number and
Registration number in the Book of Companies in Milan 03232190961,
corporate capital 4.630.233.510 Euro entirely paid (the CONSTITUENT);
(2) BANCA DI ROMA S.P.A., a company operating under Italian law, with legal
offices in Rome, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ no. 180, corporate capital
2.262.082.921 Euro, entirely paid, Tax Identification number and
Registration number in the Book of Companies in Rome: 06978161005, in
the role of facility agent (the AGENT);
(3) BANCA INTESA S.P.A., a company operating under Italian law, with legal
offices in Milan, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. 10, corporate capital
3.596.249.720.96 Euro, entirely paid, Tax Identification number and
Registration number in the Book of Companies in Milan: 00799960158;
(4) BANCA DI ROMA S.P.A., a company operating under Italian law, with legal
offices in Rome, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ no. 180, corporate capital
2.262.082.921 Euro, entirely paid, Tax Identification number and
Registration number in the Book of Companies in Rome: 06978161005;
(5) BIPOP CARIRE S.P.A., a company operating under Italian law, with legal
offices in Brescia, on Via ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ no. 74, corporate capital
855,250,000 Euro entirely paid, Tax Identification number and
Registration number in the Book of Companies in Brescia: 03336830967;
(6) BANCO DI SICILIA S.P.A., a company operating under Italian law, with
legal offices in Palermo, on Via Generale ▇▇▇▇▇▇▇▇▇ no. 1, corporate
capital 1,432,338,781.05 entirely paid, Tax Identification number and
Registration number in the Book of Companies in Palermo: 05102070827;
(7) IRFIS MEDIOCREDITO ▇▇▇▇▇ ▇▇▇▇▇▇▇ S.P.A., a company operating under
Italian law, with legal offices in Palermo, on ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ n. 47,
corporate capital 70,244,000 Euro entirely paid, Tax Identification
number and Registration number in the Book of Companies in Palermo:
00257940825;
(8) MCC S.P.A., a company operating under Italian law, with legal offices
in Rome, on Via Piemonte no. 51, corporate capital 475,138,635 Euro
entirely paid, Tax Identification number and Registration number in the
Book of Companies in Roma: 00594040586;
(9) UNICREDIT BANCA D'IMPRESA S.P.A., a company operating under Italian
law, with legal offices in Verona, on Via Garibaldi no. 1, Corporate
Capital 4.107.904.696 Euro entirely paid, Tax Identification number and
Registration number in the Book of Companies in Verona: 03656170960;
(10) CALYON S.A., MILAN OFFICE, a company operating under French law, with
the secondary office in Milan, on ▇▇▇ ▇▇▇▇▇ ▇▇. 21 and legal offices on
9, Quai du President ▇▇▇▇ ▇▇▇▇▇▇, 92920 Paris, La Defense Cedex,
Corporate Capital 3,119.771.484 Euro, entirely paid, Tax Identification
number and Registration number in the Book of Companies in Milan:
11622280151;
4
(11) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK INTERNATIONAL LIMITED, MILAN OFFICE, a company
operating under British and Gallician law, and with a secondary office
in Milan, on Corso Venezia no. 16 and legal offices in London, in Cabot
Square no. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Corporate Capital 380,000
British Pounds entirely paid, Tax Identification number and
Registration number in the Book of Companies in London: 3722571;
(12) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ EUROPEAN FUNDING, INC., a corporation founded in
accordance with the laws of the State of Delaware (United States of
America), with legal offices in Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇
▇▇▇▇▇▇ of America), corporate capital 1000 U.S. Dollars entirely paid,
State Filing Number: 3731121;
(13) SOCIETE GENERALE, MILAN OFFICE, an anonymous corporation operating
under French law, with legal offices in Paris, Boulevard Haussmann n.
29 and office for Italy in Milan, ▇▇▇ ▇▇▇▇▇ ▇▇. 2, corporate capital
556,441,448.75 Euro entirely paid, Tax Identification number and
Registration number in the Book of Companies in Milan: 80112150158;
(the banks and financial institutions listed from (3) to (13)
including those indicated collectively as the ORIGINAL LENDERS. The
Original Lenders and the Agent are indicated hereinafter as the
GUARANTEED CREDITOR); and
(14) BANCA DI ROMA S.P.A., a company operating under Italian law, with legal
offices in Rome, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. 180, corporate capital
2.262.082.921 Euro entirely paid, Tax Identification number and
Registration number in the Book of Companies in Rome: 06978161005 (the
DEPOSITARY).
IT IS ESTABLISHED THAT:
(A) through a loan contract (the LOAN CONTRACT) stipulated on
January 12, 2005 among Banca di Roma S.p.A., Banca Intesa
S.p.A., MCC S.p.A., UniCredit Banca Mobiliare S.p.A., Calyon
S.A., Milan Office, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank International Limited,
Milan Office, Societe Generale, Milan Office in the role of
Mandated Lead Arrangers, the Agent, the Original Lenders and
the Constituent, the Original Lenders have agreed to issue the
Constituent a loan for the total amount of 2,400,000,000 Euro
(the LOAN) in the terms discussed in the Loan Contract. The
Loan is described in more details in Addendum 1;
(B) With Loan Document subscribed on January 20, 2005 (The
Original Pledge Document) between inter alias the Costituent
and the Guaranteed Creditor", the Constituent is the bearer of
a total of 920,892,723 ordinary shares of stock in the Company
(as defined below) with a nominal value of 0.55 Euro each
(C) Following the rebate of the VTL value (as defined in the Loan
Contract) with letter dated March 9, 2006 the Costituent has
declared to the Agent that he intends to exercise the faculty
provided in article 7.4 (b)(i) of the Loan Contract
(Integration Clause) and as a consequence constitute a pledge
on the additional collateral (as defined on the Loan Contract)
as integration of the Original Pledge Document in accordance
with the provisions of the Guarantee Decree (as further
defined);
5
(D) The Costituent is the owner of n. 177.570.808 ordinary voting
shares (as further defined) with nominal value of euro 0,55
each (the Shares);
(E) The shares are part of the management system of
dematerialization, in accordance with Article 28 et sig. of
Legislative Decree no. 213 of June 24, 1998, as expanded and
modified from time to time (the EURO DECREE);
(F) The Depositary, in the role of Depositary and agent authorized
in accordance with Legislative Decree no. 58 of February 24,
1998, as expanded and modified from time to time (the TUF), is
the Depositary for a special account held by the Constituent,
destined, inter alia, for the recording of the restrictions on
the shares held by the Constituent himself, in accordance with
and as a result of Article 34 of the Euro Decree;
ALL THIS HAVING BEEN ESTABLISHED, the parties hereby agree and stipulate as
follows:
1. INTERPRETATION
The introductory points and the addenda form an integral and
substantial part of this Document.
1.1 DEFINITIONS
In this document:
The term AGENT has the meaning attributed to the term Facility Agent in
the Loan Contract, and every reference to the Agent in this Document
should be understood as referring to the Agent that acts on behalf of
the Guaranteed Creditor in accordance with the Loan Contract.
The term SHARES has the meaning attributed in Introduction Section D.
The term Cause of Settlement indicates:
(a) the occurrence of a Significant Event as discussed in Article
19 (Events of Default) of the Loan Contract, as a result of
which the Agent may send the Constituent a notice in
accordance with Article 19.12 (Acceleration) of the Loan
Contract;
(b) the occurrence of any event (including, solely for the
purposes of example, but not limited to, a Significant Event
specified in Articles 19.6 (Insolvency), with the exception of
those indicated under points (a) and (d), or 19.7 (Insolvency
proceedings), with the exception of those indicated under
points (a)(i), (a)(ii), (a)(vi), only in the event that the
notice mentioned therein is not provided in writing, and
(a)(vii) only for the last ones referred to, in the Loan
Contract which causes the ex lege nullification of the
Guaranteed Obligation; or
(c) the failure to make payment on the part of the Constituent of
the Guaranteed Obligations described in sub-section (d) of the
Definition of "Guaranteed Obligations" of this Document within
5 (five) Business Days from the request for payment on the
part of the Agent.
6
The term TRANSFER indicates any modification, complete or partial
transfer of the Loan Contract and this Document, or any modification,
transfer, or novation of the Guaranteed Obligations, including solely
for the purposes of example but not limited to every transfer on the
basis of a novation of British law or any transfer through a Transfer
Certificate in accordance with the Loan Contract.
The term RESTRICTIONS ACCOUNT indicates stock account no. 888202 opened
by the Constituent at the Depositary.
The term LOAN CONTRACT has the meaning attributed in Introduction
Section A.
The term EURO DECREE has the meaning attributed in Introduction Section
E..
The term GUARANTEE DECREE indicates Legislative Decree no. 170 of May
21, 2004, as expanded and modified from time to time.
The term CONSOB DECISION indicates Consob Decision no. 11768 of
December 23, 1998, as expanded and modified from time to time .
The term ASSOCIATED RIGHTS indicates:
(a) every Dividend;
(b) every option right relating to the Shares or the Associated
Asset Values;
(c) every share or other asset value or rights attributed or which
may be attributed to the Constituent in exchange for or in
relation to any Associated Asset Value; and
(d) any other proceeds deriving from the entries listed under
letters (a), (b) and (c) of this section.
The term DIVIDENDS indicates:
(a) every dividend and account on dividends paid or payable in
relation to the Shares and participation in the company and
the goods constituted as a pledge in accordance with this
Document after the date of the stipulation of this Document;
(b) any other distribution (in money or in kind), interest, or
other sum paid or payable in relation to the Shares
(including, solely for the purposes of an example, any amount
paid or payable as a result of the distribution of reserves,
called whatever they may be, or the repayment on the part of
the Company of the contributions of shareholders or the
liquidation of the Company);
(c) any dividend, distribution, or other sum paid or payable in
relation to the Associated Asset Values.
The term FINANCE DOCUMENTS has the meaning attributed to the term
Finance Documents in the Loan Contract.
SIGNIFICANT EVENT has the meaning attributed to the term Event of
Default in the Loan Contract.
The term LOAN has the meaning attributed in Introduction Section A.
The term BUSINESS DAY indicates the day, other than a Saturday or a
Sunday, on which the banks are open to the public in London and Milan.
7
The term BANKRUPTCY LAW indicates Royal Decree no. 267 of March 16,
1942, as expanded and modified from time to time.
The term Guaranteed Obligations indicates:
(a) all the pecuniary obligations of the Constituent in relation
to the Loan, including, in particular, the obligations
relating to the correct execution of the payment obligations
in relation to the capital, interest, late charges, costs,
expenses, compensation, indemnity, commissions, fees, or other
financial obligations, any amount due as a result of the
repayment or advanced reimbursement of the partial or full
amount of the Loan on a date other than the date contractually
established (the Break Costs) and all the other costs,
expenses, or other financial obligations or fees (even legal
fees) due in relation to the protection or fulfillment of the
rights of the Guaranteed Creditor of the rights and measures
established by the Loan Contract;
(b) all the pecuniary obligations of the Constituent deriving from
the invalidity or ineffectiveness of the obligations as
discussed in section (a), such as, solely for the purposes of
example but not limited to, those in accordance with article
2033 or article 2041 of the civil code;
(c) all the pecuniary obligations of the Constituent in the
hypothetical situation of revocation or non-effectiveness in
accordance with Article 65 or Article 67 of the Bankruptcy Law
(or any other similar legislation according to the applicable
law) of every payment made by the Constituent or by a third
party to fulfill the obligations discussed in sections (a) and
(b); in addition to
(d) all the pecuniary obligations of the Constituent in accordance
with this Document.
The term OBJECT OF THE PLEDGE indicates, collectively, the Shares and
the Associated Rights .
The term PLEDGE indicates the pledge on the Object of the Pledge
created through this Document, notwithstanding the fact that the term
"Pledge" should also include any further pledge right that is
constituted in accordance with this document.
The term GUARANTEED PERIOD indicates the period that begins from the
date of this Document and concludes with the first anniversary or any
other term determined from time to time by law (or, in the case of the
applicability of Article 65 or Article 67, section one, of the
Bankruptcy Law, the second anniversary or any other term determined
from time to time by law) of the complete and unconditional fulfillment
of the Guaranteed Obligations; notwithstanding the fact that in the
meantime the Constituent or any other party that has made payments on
behalf of the Constituent is placed in bankruptcy procedure that causes
the application of Article 65 or 67 of the Bankruptcy Law (or any other
similar legislation according to the applicable law), this term will be
extended until no revocation action may be exercised.
The term REGULATION OF THE ISSUERS indicates Consob decision no. 11971
of May 28, 1999, as expanded and modified from time to time.
The term REFORM OF COMPANY LAW indicates Legislative Decree no. 6 of
January 17, 2003 on the reform of the rules governing capital
corporations and cooperation, through the enactment of law no. 366 of
8
October 3, 2001 (Organic reform of the governance of capital companies
and cooperative companies, through the enactment of law no. 366 of
October 3, 2001), as modified and expanded from time to time.
The term COMPANY indicates TELECOM ITALIA S.p.A., a company operating
under Italian law, with legal offices in Piazza Affari no. 2, Milan,
Tax Identification Number and Registration Number in the Book of
Companies in Milan 00488410010, corporate capital 10.673.680.151.75
Euro, entirely paid.
The term TAXES has the meaning attributed to the term Tax in the Loan
Contract.
The term TUF has the meaning attributed in Introduction Section F.
The term ASSOCIATED ASSET VALUES indicates any share or other asset
value, right, or proceed which is attributed or which may be attributed
at any time to the Constituent in exchange for or in relation to the
Shares (including, solely for the purposes of example, but not limited
to, shares as a result of a merger, demerger, or transformation of the
Company).
1.2 INTERPRETATION
(a) The stipulations introduced in Article 1.2 of the Loan Contract are to
be applied, mutatis mutandis, to this Document.
(b) The terms defined (in English) in the Loan Contract have the same
meaning when they are used in this Document, unless they are
established otherwise in this Document.
2. GUARANTEE
2.1 PLEDGE
The Constituent constitutes irrevocably the Object of the Pledge as a
first degree Pledge in favour of the Guaranteed Creditor.
2.2 FUTURE SHARES AND ASSOCIATED RIGHTS
The Pledge shall be automatically extended from time to time to all
future shares issued and assigned by the Company to the Constituent for
free increases in corporate capital and to the rights associated with
them that the Constituent may hold from time to time in the Company.
2.3 ADDITIONAL GUARANTEES
In the event of the occurrence of the conditions defined in Articles
4.2(b), 7.4, and 7.9 of the Loan Contract, in accordance with and to
the effect of the points established therein, the Constituent may and
shall have the obligation of constituting further Collateral as a
pledge in favor of the Guaranteed Creditor if the need should arise.
2.4 FORMALITIES RELATED TO FUTURE SHARES AND ADDITIONAL GUARANTEES
In the event that:
(a) the Company should issue new shares for a free increase in
Corporate Capital in accordance with the points established in
section 2.2 above; or
(b) if the Constitution has constituted or has the intention of
constituting additional Collateral as a Pledge in accordance
with the terms of the Loan Contract,
9
The Constituent itself in relation:
(i) to the additional Collateral (with the exception of
the Cash Equivalent), must simultaneously sign and
deliver to the Guaranteed Creditor a Pledge Document
bearing a certain date, with content and form
substantially identical to this Document; and
(ii) in relation both to the newly issued shares
established in section 2.2 above and to additional
Collateral (with the exception of the Cash
Equivalent) (collectively, the NEW FINANCIAL
INSTRUMENTS), the Constituent shall simultaneously:
(A) ensure that the Depositary performs all the
actions necessary for the fulfillment of the
Pledge on the New Financial Instruments,
and, in particular, that the Depositary
agrees to record and in fact does record the
New Financial Instruments in the
Restrictions Account held in accordance with
Article 34 of the Euro Decree, in accordance
with the points established in Article 45 of
Consob Decision, giving prompt notice to the
Company in accordance with and to the
effects of Article 87 of the TUF; and
(B) ensure that the Company, upon receiving the
notice discussed in section (A) above, does
the following:
I. records the constitution of the
Pledge on the New Financial
Instruments in the Book of
Shareholders of the Company and in
other books held by the Company; and
II. promptly gives the Agent an
authenticated copy of the pages of
the Book of Shareholders of the
Company proving that the annotation
has, in fact, been made.
The annotation in the Book of Shareholders of the
Company discussed in section (b)(ii) (B) (I) above,
relating to the newly issued shares for the free
increase of corporate capital, must be done using the
form presented in Addendum 2, Part 2 of this
document.
2.5 GOVERNANCE OF THE PLEDGES
The stipulations of this Document shall be applied to all the Pledges
created in accordance with Article 2 herein.
3. GUARANTEED OBLIGATIONS
The Object of the Pledge is constituted as a first degree Pledge in
favor of the Guaranteed Creditor as a guarantee for the Guaranteed
Obligations.
4. FULFILLMENT OF THE PLEDGE
(a) The Constituent shall perform all the necessary actions to ensure the
following:
(i) simultaneously to the fulfillment of the formalities involved
in the release of the Original Pledge, the Depositary will
fulfill all the formalities necessary for the fulfillment of
the Pledge, and in particular, it will record the Pledge,
subjecting the Pledge to the Shares in the Restriction
10
Account, in accordance with Article 34 of the Euro Decree, in
accordance with the terms established by Article 45 of the
Consob Decision, giving prompt notice to this effect, as
specified by Article 87 of the TUF;
(ii) the Company:
(A) upon receipt of the notice discussed in section
(a)(i) above, will record the zconstitution of the
Pledge in the Book of Shareholders of the Company;
and
(B) within 5 (five) Business Days from the receipt of the
notice discussed in section (a)(i) above, will send
the Agent an authenticated copy of the pages in the
Book of Shareholders of the Company proving that the
annotation has indeed been made.
(b) The annotation of the Book of Shareholders of the Company discussed in
section (a)(ii) above must be done by using the form attached in
Addendum 2, Part 1 of the present Document.
(c) Until the release of the Pledge in accordance with Article 9 of this
Document, the Shares must remain recorded in the Restriction Account.
(d) In accordance with the terms established in the Euro Decree, the
Depositary, upon request of those having voting rights as established
in article 5 below, must release the certificates necessary for the
exercising of all rights related to the Shares.
5. VOTING RIGHTS AND RELATED RIGHTS
5.1 VOTING RIGHTS
(a) Until the communication on the part of the Agent as discussed in
Article 5.3(a) below that a Significant Event has occurred, the voting
rights and the administrative rights related to the Shares, both in the
General Assembly and in the Extraordinary Assemblies of the Company,
will remain the property of the Constituent, notwithstanding the fact
that in no case may these rights be exercised by the Constituent in
order to bring about the following:
(i) to cause a Significant Event to take place; or
(ii) to prejudice the validity, the effectiveness or the
enforceability of the Pledge or the rights of the Agent or the
Guaranteed Creditor in relation to the Pledge and the Object
of the Pledge.
5.2 ASSOCIATED RIGHTS
Until the communication on the part of the Agent as discussed in
Article 5.3(a) below that a Significant Event has occurred, the
Constituent shall have the right to receive Dividends.
5.3 THE OCCURRENCE OF A SIGNIFICANT EVENT
(a) When a Significant Event occurs, the Agent will send a notice to the
Constituent, the Depositary Bank and the Company, informing them that a
Significant Event has occurred, and, for the entire period in which the
Significant Event should remain in effect, in accordance with the Loan
11
Contract and up to the time in which the Guaranteed Creditor
communicates in writing to the Constituent, the Depositary Bank and the
Company that the Significant Event has ceased or it has been remedied,
the Guaranteed Creditor, through the Agent:
(i) will have the right (but not the obligation) in respect to the
obligation of informing the Company and Consob in accordance
with the TUF and any other applicable law, to exercise the
voting rights and the administrative rights relating to the
Shares both in the Ordinary and in the Extraordinary
Assemblies of the Company; and
(ii) will receive all the Dividends. The Dividends received in this
manner from the Agent will attributed to satisfying the
Guaranteed Obligations due, or, in the event that there are no
Guaranteed Obligations due, they will be held by the
Guaranteed Creditor as a guarantee for the Guaranteed
Obligations and attributed to their satisfaction in case a
Cause of Termination should occur. It is understood that in
case the Significant Event discussed in the above section (a)
has ceased or if it has been remedied, the Guaranteed
Creditor, through the Agent, must, within 5 (five) Business
Days, transfers the sums corresponding to the Dividends, held
by the Guaranteed Creditor, to the Constituent.
(b) The Constituent hereby authorizes the Depositary to do whatever is
necessary to allow the Guaranteed Creditor to exercise the rights
discussed in section (a) above.
(c) The Constituent hereby waives the right to raise any objection or
present any case, defense, or opposition concerning the legitimacy of
the right of the Agent to exercise the rights discussed in section (a)
above or the method of exercising these rights on the part of the
Agent. These types of case, defense, or opposition:
(i) may be brought or put forward only in the event of wilful
misconduct or gross negligence on the part of the Agent, and,
unless the notice discussed in the previous section (a) has
not been previously renounced by the Agent, only for the
purpose of compensation for damages as a result of the wilful
misconduct or gross negligence; and
(ii) this case, defense, or opposition will not have any effect on
the exercise of the voting rights and administrative rights,
and the right to Dividends, on the part of the Agent and the
Guaranteed Creditor, as discussed in the previous section (a).
6. RIGHTS RELATING TO THE WARRANTS AND THE CONVERTIBLE BONDS
6.1 PLEDGE ON WARRANTS AND CONVERTIBLE BONDS
In the event that the Constituent has constituted or has the intention
of constituting a pledge in favor of the Guaranteed Creditor, warrants
or convertible bonds of the Company as additional Collateral in
accordance with Articles 2.3 and 2.4 above, (the WARRANTS and the
CONVERTIBLE BONDS), the stipulations discussed in article 6.2 shall be
applicable.
12
6.2 GOVERNANCE OF THE RIGHTS RELATING TO THE WARRANTS AND THE CONVERTIBLE
BONDS
(a) Notwithstanding the Pledge on the Warrants and on the Convertible
Bonds, the parties hereby agree that the Constituent should preserve
the right to exercise the Warrants and to convert the Convertible
Bonds.
(b) The Constituent may ask the Agent to exercise the Warrants and/or to
convert the Convertible Bonds, in the name of and on behalf of the
Constituent, making a written request to the Agent at least 5 (five)
Business Days before the day on which the Agent is asked to exercise
the right, and in respect to the Warrants, paying the sum necessary for
the underwriting of the shares of the Company deriving from the
exercising of the Warrants.
(c) It is hereby understood that the shares of the Company that will be
underwritten as a result of the exercising of the Warrants and/or the
conversion of the Convertible Obligations shall be deposited in the
Restricted Account and are understood from this time on to be
irrevocably constituted as a first degree pledge in favour of the
Guaranteed Creditor as a guarantee for the Guaranteed Obligations.
(d) The Constituent shall ensure that the Depositary completes and the
Depositary commits to complete all the formalities necessary for the
fulfillment of the Pledge in accordance with Article 4 (Fulfillment of
the Pledge) on the shares deriving from the exercising of the Warrants
and the conversion of the Convertible Bonds.
(e) The Constituent grants the Agent every power of representation
necessary to fulfill the obligations arising from this Article in
relation to the exercising of the warrants and the conversion of the
Convertible Bonds in the name of and on behalf of the Constituent, and
will release the Agent and the Creditor from the obligation to pay any
tax, duty, cost, expense, or honoraria (including legal fees) incurred
in performing the actions discussed in the previous Article.
7. SETTLEMENT OF THE PLEDGE
(a) In case of the occurrence of a Cause of Settlement and at any
subsequent time, the Guaranteed Creditor, notwithstanding any other
right or action, will have the right to the following:
(i) to sell the Object of the Pledge, or part of it, after 5
(five) days have passed from the receipt on the part of the
Company and the Constituent of the notice sent by the Agent,
in accordance with Article 2797, section one, of the civil
code, notwithstanding the right discussed in Article 2798 of
the civil code; or, at the discretion of the Agent:
(ii) in accordance with Article 4 of the Guarantee Decree, also in
the event of the opening of a bankruptcy or liquidation
procedure (as defined respectively in the Guarantee Decree):
(A) to proceed with the appropriation of the Object of
the Pledge until the fulfillment of the Guaranteed
Obligations. In this regard, the parties to this
Document hereby expressly agree that as an evaluation
criterion in accordance with Article 4.1.(b) of the
Guarantee Decree, the Object of the Pledge will be
estimated according to its average official price
13
recorded in the 25 (twenty-five) days of open market
prior to the date of receipt of the notice discussed
in Article 5.3 by the Constituent; or
(B) to sell the Object of the Pledge or part of it and to
withhold the sum as a satisfaction of the Guaranteed
Obligations.
(b) In the cases discussed in section (a)(i) above, the Constituent and the
Guaranteed Creditor hereby agree that the respective sale of the Object
of the Pledge, notwithstanding the right discussed in Article 2797,
section two and four and Article 2798 of the civil code, may also be
performed, in whole or in part, in several installments, through
auction or otherwise but in any case it shall be done:
(i) through an authorized primary financial broker chosen by the
Agent, or another person authorized by the Agent; or, at the
choice of the Agent,
(ii) through a legal official.
(c) In the cases discussed in section (a)(ii) above, in accordance with
Article 4.2 of the Guarantee Decree, the Guaranteed Creditor shall
immediately inform the Constituent in writing, or, if the case may be,
the bankruptcy or liquidation bodies, in terms of the method of
settlement adopted and the amount retrieved.
8. DECLARATIONS AND GUARANTEES
8.1 DECLARATIONS AND GUARANTEES OF THE CONSTITUENT
Notwithstanding the declarations and the guarantees discussed in the
Loan Contract and the other Financial Documents, the Constituent makes
the following declarations and guarantees to the Guaranteed Creditor:
(a) the Constituent is the sole legitimate owner of the Shares.
With the exception of the Pledge and the Original Pledge, the
Object of the Pledge is free from any restriction, lien,
privilege, right, or option or any other lien of a legal or
contractual nature, in respect to third parties;
(b) the Shares have been validly issued, underwritten, and
completely paid for in accordance with the stipulations of
current law;
(c) the Constituent has the full capacity, powers, and legitimacy
to stipulate this Document and to validly constitute the
Pledge;
(d) the Pledge discussed in this Document, as a result of the
execution of the formalities discussed in Article 4, will
constitute a first degree Pledge as a guarantee for the
Guaranteed Obligations, valid and effective for the
Constituent, the Company, and third parties;
(e) there are no legal actions or sentences, or cases under way or
threats issued in writing to the Constituent, pending in any
legal jurisdiction, or to the best of the knowledge of the
Constituent, any case before arbitration, in Italy or abroad,
in relation to the Object of the Pledge;
(f) the creation, the constitution, and the fulfillment of the
Pledge fall under the corporate objective of the Constituent
and the Constituent has obtained all the authorizations,
14
consents, licenses, and approvals (corporate or any other
type) necessary in relation to the constitution of the Pledge;
(g) the creation, the constitution, and the fulfillment of the
Pledge and the stipulations of this Document are not in
conflict with any other contract, agreement or pledge in which
the Constituent or the Company is a party, or any law,
regulation, or document that is binding for the Constituent or
the Company;
(h) The Shares rappresents ordinary voting shares in any kind of
shareholders'meeting of the Company in relation to any topic
submitted to the attention of the shareholders'meeting;
(i) on the date of the signing of this Document, no procedure has
been brought by the Company, its administrators, or by the
Constituent, to modify the corporate capital of the Company,
including, solely for the purposes of example and not limited
to the reduction of corporate capital; and
(j) The Company: it is a corporation validly founded and in
existence in accordance with Italian law; it is not subject to
any bankruptcy procedure, liquidation, or any similar
procedure in Italy or abroad; it does not have the intention
of selling its goods to creditors in accordance with Article
1977 of the civil code, and it is not in the state of
insolvency.
8.2 REITERATION OF THE DECLARATIONS AND GUARANTEES
All the declarations and guarantees of the Constituent in accordance
with Article 8.1, with the exception of those established in sections
(h) and (i), shall be considered to be reiterated by the Constituent on
the date of presentation of each Request and on the first day of each
Term, in reference to the facts and the circumstances in existence from
time to time, as if they were made at that time.
9. OBLIGATIONS OF THE CONSTITUENT
Notwithstanding the points established in Article 10(b), up to the
expiration of the Guaranteed Period, the Constituent hereby agrees to
do the following:
(a) to not undertake any actions (including solely for the
purposes of example and not limited to the exercise of voting
rights and administrative rights on the Shares) that may
affect the validity, the effectiveness, and the executability
of the Pledge or the rights of the Agent and the Guaranteed
Creditor in relation to the Pledge and the Object of the
Pledge;
(b) to undertake at its own expense any action necessary to
guarantee the validity, effectiveness, and executability of
the Pledge and the rights of the Agent and the Guaranteed
Creditor, even solely for the purposes of example and not
limited to the any case brought by third parties;
(c) to promptly inform the Agent of any case brought by third
parties in relation to the Object of the Pledge that is to
such an extent that it might have a significant negative
effect;
(d) to execute and promptly deliver all the documents at its own
expense and to perform all the actions in order to:
15
(i) fulfill the Pledge on the Object of the Pledge;
(ii) perform all the formalities established in accordance
with Article 2 above; and
(iii) place the Agent and the Guaranteed Creditor in such a
position that they are able to exercise the rights
and perform the actions to which they have a right in
accordance with this Document, including, without any
limitations, all the rights and the actions that may
be exercised in case a Significant Event or a Cause
of Settlement should take place;
(e) not to create or allow the creation of any obstacle,
guarantee, or lien on the Object of the Pledge;
(f) at its own expense, to promptly deliver to the Agent a copy of
the corporate by-laws of the Company, authenticated by a
Notary, as modified from time to time; and
(g) at its own expense, to promptly deliver to the Agent all the
notices and any other document received and relating to the
Object of the Pledge or to the rights of the Guaranteed
Creditor on the basis of this document which might have a
substantial negative effect, including, solely for the
purposes of example and not limited to the any communication
received by and sent to the Company, any communication or
document relating to legal cases brought by third parties or
threats sent in writing to the Constituent and brought before
any legal authority or arbitrator, in Italy or abroad, in
relation to the Object of the Pledge.
10. EXTINCTION AND CANCELLATION OF THE PLEDGE
(a) Notwithstanding the points established in section (b) below, at the
expiration of the Guaranteed Period, the Pledge will be completely
released by the Guaranteed Creditor at the request of the Constituent
and with all expenses paid by the Constituent, and, as a result, the
Shares will again become free and all the Associated Rights will return
to the Constituent, and the Guaranteed Creditor will consent to the
annotation of the cancellation of the Pledge, giving instructions to
the Depositary in this regard.
(b) After the complete and unconditional fulfillment of the Guaranteed
Obligations, upon the written request of the Constituent for the
release of the Pledge, the Guaranteed Creditor will consent, through
the Agent, to completely release the Pledge and to note the
cancellation of the Pledge before the expiration of the Guaranteed
Period, giving instructions to the Depositary in this regard, on the
condition that the Company has given the following documents to the
Agent, in a form considered satisfactory by the Agent:
(i) the last annual certified balance sheet, the last semi-annual
report and the last quarterly report, certified in accordance
with the law;
(ii) any prospectus, documentation, and/or information document
communicated to the public and/or to Consob, in the year prior
to the date of the complete and unconditional fulfillment of
the Guaranteed Obligations, in accordance with Part II,
Sections I and II, and Part III, Section I of the Regulation
of the Issuers;
from which there is no fact or circumstance from which the
Agent can feel in good faith that the Constituent is in a
state of insolvency or that it will become insolvent, or
16
subject to bankruptcy procedure, liquidation, or any other
similar procedure in Italy or abroad, in the two years
subsequent to the date of release to the Agent of the
documents discussed in this section b); and
(iii) a statement issued by a member of the Board of Directors of
the Constituent with executive duties, in which he or she
declares that the Constituent, on the date of the complete and
unconditional fulfillment of the Guaranteed Obligations and at
the time of the release of the statement to the Agent: (A) was
not and is not in the situation discussed in Article 2446 and
2447 of the civil code; (B) was not and is not in a state of
insolvency; and, on the basis of the information in possession
on that date (C) no fact or circumstance occurred or is
occurring that may cause in good faith and reasonable feeling
that the Constituent may be in a state of insolvency or may
become insolvent, in liquidation, subject to bankrupcy or any
similar procedure in Italy or abroad which is based on good
grounds, in the two years following (or in any other term, as
established by law) the date of issue of the aforementioned
declaration to the Agent.
(c) Upon the written request on the part of the Constituent sent to the
Guaranteed Creditor and the Depositary, and at the cost, expenses, and
Taxes of the Constituent, when the situations discussed in article 7.8
of the Loan Contract, in accordance with the terms established therein:
(i) the Guaranteed Creditor agrees to partially release the Pledge
limited to the specific Shares specified in the Release
Certificate, by signing a document for the partial return of
the Pledge; and
(ii) the Depositary agrees to perform, after signing the document
discussed in point (i) above, all the actions necessary for
the partial release of the Pledge, including the cancellation
of the Pledge, limited to the Shares indicated in the Release
Certificate.
(d) It is hereby understood that despite the partial release of the Pledge
discussed in section (c) above, the Pledge will continue to be fully
valid and effective for all the remaining Shares not specified in the
Release Certificate.
11. INDEMNITY, TAXES, COSTS, AND EXPENSES
11.1 RESPONSIBILITIES OF THE GUARANTEED CREDITOR, THE AGENT, AND THE
DEPOSITARY
Neither the Guaranteed Creditor, the Agent, nor the Depositary will be
responsible except in the case in which they have acted with wilful
misconduct or gross negligence, for damages caused to the Constituent
or to the Company as a result of their exercising or their failure to
exercise the rights, actions, or measures to which they are entitled in
accordance with this Document.
11.2 TAXES AND EXPENSES
(a) All the taxes and fees, and also all the costs and expenses related to
the negotiation, stipulation, fulfillment, and execution of this
Document and the payments to be made on the basis of this Document,
including solely for the purposes of example and not considered a
complete list, the legal expenses and the notary expenses and the
expenses and fees for recording the document, together with other
17
expenses that may arise due as a result of the use of this document,
shall be the exclusive responsibility of the Constituent.
(b) All the Taxes, fees, costs, and expenses (including legal and notary
expenses) incurred by the Agent or by the Guaranteed Creditor in
relation to the protection, the maintenance and the settlement of the
Pledge, will be the exclusive responsibility of the Constituent.
11.3 INDEMNITY
(a) The Constituent will hold the Agent, the Guaranteed Creditor, and the
Depositary free from any responsibility in terms of taxes, duties,
costs, expenses, and honoraria (including legal and notary expenses) as
discussed in the present Article 11.2 and for those expenses incurred
by the Agent and the Guaranteed Creditor in relation to::
(i) the constitution, protection, and settlement of the Pledge;
and
(ii) any fulfillment on the part of the Constituent of the
obligations discussed in this Document.
(b) The Constituent shall reimburse the Agent for these fees and expenses
within 5 business days from the receipt of the written request on the
part of the Agent.
12. COMMUNICATIONS
12.1 THE FORM OF THE COMMUNICATIONS
Unless otherwise established in this Document or in accordance with the
law, all the communications in accordance with this Document must be
made in the form and in the manner established by Article 32 (Notices)
of the Loan Contract.
12.2 ADDRESSES
(a) With the exception of the points indicated in Article 12.3, all the
communications relating to this Document must be sent to the following
address:
(i) if sent to the Agent: Banca di Roma S.p.A.
Address: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. 1, Milan
Tel.: ▇▇ ▇▇▇▇▇ ▇▇▇
Fax: ▇▇ ▇▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ / ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(ii) if sent to the Constituent: Olimpia S.p.A.
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. 222, Milan
Tel: ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(iii) if sent to the Company: Telecom Italia S.p.A.
Address: Piazza Affari no. 2, Milano
Tel.: ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o Pirelli / ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c/o Pirelli
18
(iv) if sent to the Depositary: Banca di Roma S.p.A.
Address: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. 1, Milano
Tel.: ▇▇ ▇▇▇▇▇ ▇▇▇
Fax: ▇▇ ▇▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ / ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(b) In the event that one of the parties has indicated a certain department
or manager as the recipient of the communication, any communication
sent without an indication of this department or this manager will be
considered without effect.
(c) With the exception of the points established in Article 12.3, each
party may communicate a different address to the other, through
registered letter with return receipt, (which must be in Italy) to
which the necessary communications should be sent in accordance with
this document, when 5 (five) days have passed from the receipt of the
aforementioned registered letter with return receipt.
12.3 THE SELECTION OF LEGAL DOMICILE
For the purposes of the communications relating the procedures
discussed in this Document (including, for the purposes of example, the
communications discussed in Article 2797 of the civil code), the
Constituent selects legal domicile at its offices ion ▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇.
13. MISCELLANEOUS STIPULATIONS
13.1 WAIVERS
(a) The rights of the Guaranteed Creditor in terms of this Document:
(i) may be exercised whenever necessary; and
(ii) these rights may be waived only in writing and specifically.
(b) A delay in exercising these rights or the failure to exercise any of
these rights on the part of the Agent or of the Guaranteed Creditor as
discussed in this Document does not constitute a waiver of these
rights.
13.2 MODIFICATIONS AND WAIVERS
Any modifications of the stipulations of this Document, waivers of
rights arising therefrom will have an effect only if approved in
writing by the Constituent and by the Guaranteed Creditor.
13.3 OTHER GUARANTEED RIGHTS
The right of guaranteed constituted by this Document shall be added to
and shall not affect the other guaranteed rights held or to be held by
the Guaranteed Creditor in respect to the Guaranteed Obligations.
19
13.4 SALES AND NOVATIONS
(a) This Document shall be binding for the Constituent, his successors,
transferees, and those having rights thereto even in the event of a
Sale, and the parties expressly agree to the continuation of the Pledge
in the event of a sale, in accordance with Article 1232 of the civil
code.
(b) The Constituent must confirm in writing, whenever so requested by the
Agent on the occasion or before any Sale, and give his consent to the
continuation of the Pledge in the situations discussed in Section (a)
of the present Article 13.4.
(c) When such a sale occurs, the Constituent must promptly:
(i) ensure that the Depositary updates the information in the
Restriction Account in accordance with the points established
in Article 45 of the Consob Decision, giving prompt
notification to the Company in accordance with and to the
effects of Article 87 of the TUF;
(ii) to ensure that the Company records the Sale in its Book of
Shareholders within 3 (three) business days from the
fulfillment of the formalities discussed in point (i) above,
and
(iii) given the Agent an authenticated copy of the pages of the Book
of Shareholders of the Company proving that the annotation
occurred within 3 (three) business days in accordance with the
formalities discussed in point (ii) above.
(d) Any amount due for taxes, expenses, costs, withholdings and similar
fees, including, solely for the purposes of example and not a complete
list, legal and notary expenses and the expenses for the recording of
the document which should be due or become due as a result of the Sale,
will be incurred according to the points established in the Loan
Contract.
13.5 CUMULATIVE SHARES
The rights, shares, and measures established by this Document in favor
of the Guaranteed Creditor are added to and do not exclude the other
rights, actions, and measures which the Guaranteed Creditor should hold
on the basis of contracts (including, solely for the purposes of
example, those established by the Loan Contract and those related to
each Loan Document) or in accordance with the law.
13.6 LETTER OF THE COMPANY
The Constituent hereby agrees that within 5 (five) business days from
the stipulation of this Document, it will notify the Company of the
constitution of the Pledge and shall accept all the matters agreed upon
in relation to the transfer, in favour of the Guaranteed Creditor of
the right to receive Dividends and to exercise the voting rights and
administrative rights related to the Shares.
13.7 PARTIAL INVALIDITY
The circumstance that, at any time, one or more of the stipulations of
this Document should become invalid, ineffective, or unenforceable
shall not have any effect , and shall in no way influence the validity,
effectiveness, and enforceability of the other stipulations of this
Document.
20
14. THE LAW GOVERNING THE DOCUMENT AND LEGAL JURISDICTION
14.1 THE LAW GOVERNING THE DOCUMENT
This document shall be governed by Italian law.
14.2 LEGAL JURISDICTION
For any dispute related to the interpretation, conclusion, execution,
or dissolution of this Document, or related thereto, the exclusive
jurisdiction shall lie with the Court of Milan, notwithstanding the
right of the Guaranteed Creditor to bring legal suit against the
Constituent before any competent legal authority.
London, March 20, 2006.
21
SIGNERS
CONSTITUENT
OLIMPIA S.p.A.
--------------------------------------
AGENT
BANCA DI ROMA S.p.A.
--------------------------------------
ORIGINAL LENDERS
BANCA DI ROMA S.p.A.
--------------------------------------
BANCA INTESA S.p.A.
--------------------------------------
BIPOP CARIRE S.p.A.
--------------------------------------
BANCO DI SICILIA S.p.A.
--------------------------------------
IRFIS MEDIOCREDITO ▇▇▇▇▇ ▇▇▇▇▇▇▇ S.p.A.
--------------------------------------
22
MCC S.p.A.
--------------------------------------
UNICREDIT BANCA D'IMPRESA S.p.A.
--------------------------------------
CALYON S.A., Milan Office
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK INTERNATIONAL LIMITED, Milan Office
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ EUROPEAN FUNDING, INC.
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SOCIETE GENERALE, Milan Office
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DEPOSITARY
BANCA DI ROMA S.p.A.
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23
ADDENDUM 1
DESCRIPTION OF THE LOAN
TRANCHE A
MAXIMUM AMOUNT: 2,100,000,000 Euro
PAYEE: OLIMPIA S.p.A.
PERIOD OF USE: from the Closing Date to the date that falls on the
second month after (and including) the Closing Date
FINAL EXPIRATION DATE the fifth anniversary of the date the Loan Contract
is signed
INTEREST RATE: EURIBOR increased by the Margin, equal, in relation
to the first use, to one percent per year,
notwithstanding any adjustments established by
Article 8.3 (Margin adjustments) of the Loan Contract
REPAYMENT: with a "revolving" method at the end of each interest
period (Term), and at any rate by and no later than
the Expiration Date
TRANCHE B
MAXIMUM AMOUNT: 70,000,000 Euro
PAYEE: OLIMPIA S.p.A.
PERIOD OF USE: from the Closing Date to the Expiration Date
FINAL EXPIRATION DATE the fifth anniversary of the date the Loan Contract
is signed
INTEREST RATE: EURIBOR increased by the Margin, equal, in relation
to the first use, to one percent per year,
notwithstanding any adjustments established by
Article 8.3 (Margin adjustments) of the Loan Contract
REPAYMENT: with a "revolving" method at the end of each interest
period (Term), and at any rate by and no later than
the Expiration Date
TRANCHE C
MAXIMUM AMOUNT: 230,000,000 Euro
PAYEE: OLIMPIA S.p.A.
PERIOD OF USE: from the Closing Date to the Expiration Date
FINAL EXPIRATION DATE the fifth anniversary of the date the Loan Contract
is signed
INTEREST RATE: EURIBOR increased by the Margin determined on the
basis of the adjustments established by Article 8.3
(Margin adjustments) of the Loan Contract
REPAYMENT: with a "revolving" method at the end of each interest
period (Term), and at any rate by and no later than
the Expiration Date
2
ADDENDUM 2
TEXT OF THE ANNOTATIONS IN THE BOOK OF SHAREHOLDERS
PART 1
TEXT OF THE ANNOTATION IN THE BOOK OF SHAREHOLDERS
"It is hereby noted that in accordance with the pledge document stipulated on
January 20, 2005 Olimpia S.p.A. a company operating under Italian law and with
legal offices in [o] (the CONSTITUENT), the bearer of. [o] ordinary shares in
Telecom Italia S.p.A. (the COMPANY) with a nominal value of [o] Euro each,
representing [o]% of the corporate capital of the Company represented by shares
with Ordinary Voting Rights (the SHARES), has constituted these shares as a
first degree pledge in favor of [o], a company operating under [o] law, with
legal offices in [o], [o] (the Agent) in favor of [o], a company operating under
[o] law, with legal offices in [o], [o], [o], a company operating under [o] law,
with legal offices in [o], [o](the ORIGINAL LENDERS and, together with the
Agent, the GUARANTEED CREDITOR).
These shares are stipulated as a first degree pledge to guarantee the
obligations of the Constituent and in accordance with the loan contract called
the "Agreement" stipulated between, inter alios, the Constituent and the
Guaranteed Creditor for a total maximum amount of 2,400,000,000 Euro. The voting
rights and the dividends are regulated by Article 5 of the aforementioned Pledge
Document. Finally, it is hereby noted that with a letter dated [o] addressed to
the Agent, the Company has duly recognized the stipulations and terms of the
aforementioned Pledge Document, a copy of which is filed with the documents of
the Company."
PART 2
TEXT OF THE ANNOTATION IN THE BOOK OF SHAREHOLDERS REGARDING
THE PLEDGE ON NEWLY ISSUED SHARES
"It is hereby noted that on [o], Olimpia S.p.A, a company operating under
Italian law and with legal offices in [o] (the CONSTITUENT) has been assigned by
the Company, [o] newly issued shares as a result of an increase in free capital.
In accordance with the pledge document stipulated on January [o], 2005, these
shares are stipulated as a first degree pledge in favor of [o], a company
operating under [o] law, with legal offices in [o], [o] (the AGENT) and in
favour of [o], a company operating under [o] law, with legal offices in [o],
[o], [o], a company operating under [o] law, with legal offices in [o], [o] (the
ORIGINAL LENDERS and, together with the Agent, the GUARANTEED CREDITOR) as a
guarantee for the obligations of the Constituent in accordance with: the loan
contract called the "Agreement" stipulated between, inter alios, the Constituent
and the Guaranteed Creditor for a total maximum amount of 2,400,000,000 Euro.
The voting rights and the dividends are regulated by Article 5 of the
aforementioned Pledge Document, a copy of which is filed with the documents of
the Company."