T.E.R.NA. Trasmissione Elettricità Rete Nazionale S.p.A. (incorporated with limited liability in the Republic of Italy)

Transcription

1 OFFERING CIRCULAR T.E.R.NA. Trasmissione Elettricità Rete Nazionale S.p.A. (incorporated with limited liability in the Republic of Italy) E800,000, per cent. Notes due 2024 Issue Price: per cent. and E600,000, per cent. Notes due 2014 Issue Price: per cent. The A800,000, per cent. Notes due 2024 (the A Notes) and the A600,000, per cent. Notes due 2014 (the B Notes and, together with the A Notes, the Notes) are issued by T.E.R.NA. Trasmissione Elettricità Rete Nazionale S.p.A. (the Issuer). Unless previously redeemed or purchased and cancelled, the Issuer will redeem the A Notes at their principal amount on 28th October, 2024 and will redeem the B Notes at their principal amount on 28th October, 2014, in each case as described under Conditions of the A Notes - Redemption and Purchase and Conditions of the B Notes - Redemption and Purchase, respectively. In particular, the Issuer may, at its option, redeem all, but not some only, of the Notes at any time at par plus accrued interest, in the event of certain tax changes as described under Conditions of the A Notes - Redemption and Purchase and Conditions of the B Notes - Redemption and Purchase. The A Notes bear interest from, and including, 28th October, 2004 (the Closing Date) at the rate of 4.90 per cent. per annum, payable annually on 28th October in each year. The B Notes bear interest from, and including the Closing Date at the rate of 4.25 per cent. per annum, payable annually on 28th October in each year. The Issuer will not be liable to pay any additional amounts to holders of the Notes or the interest coupons appertaining to the Notes (the Coupons) with respect to any withholding or deduction required pursuant to Italian Legislative Decree No. 239 of 1st April, 1996 and any related implementing regulations, as more fully set out in Conditions of the A Notes - Taxation and Conditions of the B Notes - Taxation and as described under Taxation - Italian Taxation. In addition, certain other customary exceptions to the Issuer s obligation to pay additional amounts to holders of the Notes or the Coupons with respect to the imposition of withholding or deduction in respect of payments relating to the Notes or the Coupons apply, also as more fully set out in Conditions of the A Notes - Taxation and Conditions of the B Notes - Taxation. Application has been made for the listing of the Notes on the Luxembourg Stock Exchange. The A Notes and the B Notes will initially each be represented by a temporary global note (the Temporary Global A Note and the Temporary Global B Note, respectively, and together, the Temporary Global Notes), without Coupons, which will be deposited on or about the Closing Date with a common depositary for Euroclear Bank S.A./N.V., as operator of the Euroclear System, (Euroclear) and Clearstream Banking, société anonyme (Clearstream, Luxembourg). Interests in the Temporary Global A Note and the Temporary Global B Note will be exchangeable for interests in a permanent global note representing the A Notes (the Permanent Global A Note) and a permanent global note representing the B Notes (the Permanent Global B Note and, together with the Permanent Global A Note, the Permanent Global Notes and, together with the Temporary Global Notes, the Global Notes) respectively, each without Coupons, on or after 7th December, 2004 (the Exchange Date), upon certification as to non-u.s. beneficial ownership. Interests in the Permanent Global Notes will be exchangeable for definitive Notes only in certain limited circumstances - see Summary of Provisions relating to the Notes while represented by the Global Notes. The Notes are in the denominations of A50,000 and integral multiples of A1,000 above A50,000. For so long as the Notes are represented by a Global Note and the relevant clearing system(s) so permit, the Notes shall be tradable in such denominations, subject always to the minimum denomination and trading amount of A50,000. There is no assurance, however, that the relevant clearing system(s) will enforce the minimum trading amount. Joint-Lead Managers Credit Suisse First Boston JPMorgan UBS Investment Bank Dresdner Kleinwort Wasserstein Lehman Brothers Co-Lead Managers HSBC SG CIB Co-Lead Managers ABN AMRO Banca Akros S.p.A. - Gruppo Banca Popolare di Milano Banca Nazionale del Lavoro Banco Bilbao Vizcaya Banc of America Securities Limited Bear, Stearns International Argentaria, S.A. Limited Daiwa Securities SMBC Europe Deutsche Bank Dexia Capital Markets DZ BANK AG HVB Corporates and Markets ING Financial Markets Mitsubishi Securities International plc MPS Finance Nomura International RASFIN SIM S.p.A. Santander Central Hispano The Royal Bank of Scotland The date of this Offering Circular is 26th October, 2004

2 The Issuer accepts responsibility for the information contained in this Offering Circular. To the best of the knowledge and belief of the Issuer (having taken all reasonable care to ensure that such is the case) the information contained in this Offering Circular is in accordance with the facts and does not omit anything likely to affect the import of such information. The Issuer, having made all reasonable enquiries, confirms that this Offering Circular contains or incorporates by reference all information which is material in the context of the Notes, that the information contained or incorporated by reference in this Offering Circular is in all material respects true and accurate and not misleading, that the opinions and intentions expressed in this Offering Circular are honestly held and that there are no other facts the omission of which would make this Offering Circular or any of such information or the expression of any such opinions or intentions misleading. The Issuer accepts responsibility accordingly. No person has been authorised to give any information or to make any representation other than those contained in this document in connection with the offering of the Notes and, if given or made, such information or representations must not be relied upon as having been authorised by the Issuer or the Managers (as defined under Subscription and Sale below). Neither the delivery of this document nor any sale made hereunder shall, under any circumstances, constitute a representation or create any implication that there has been no change in the affairs of the Issuer or the Group since the date hereof. This document does not constitute an offer of, or an invitation by, or on behalf of, the Issuer or the Managers to subscribe for, or purchase, any of the Notes. This document does not constitute an offer, and may not be used for the purpose of an offer to, or a solicitation by, anyone in any jurisdiction or in any circumstances in which such an offer or solicitation is not authorised or is unlawful. Neither the Managers nor J. P. Morgan Corporate Trustee Services Limited (the Trustee) have separately verified the information contained herein. Accordingly, no representation, warranty or undertaking, express or implied, is made and no responsibility or liability is accepted by the Managers, the Trustee or any of them as to the accuracy or completeness of the information contained in this Offering Circular or any other information provided by the Issuer in connection with the Notes or their distribution. This Offering Circular is not intended to provide the basis of any credit or other evaluation and should not be considered as a recommendation by the Issuer, the Managers or the Trustee that any recipient of this Offering Circular should purchase any of the Notes. Each investor contemplating purchasing Notes should make its own independent investigation of the financial condition and affairs, and its own appraisal of the creditworthiness, of the Issuer. The Notes have not been and will not be registered under the United States Securities Act of 1933, as amended, (the Securities Act) and are subject to U.S. tax law requirements. Subject to certain exceptions, the Notes may not be offered, sold or delivered within the United States or to U.S. persons. For a further description of certain restrictions on the offering and sale of the Notes and on distribution of this document, see Subscription and Sale below. All references in this document to euro and E refer to the currency introduced at the start of the third stage of European economic and monetary union pursuant to the Treaty establishing the European Community, as amended. IN CONNECTION WITH THE ISSUE OF THE NOTES, UBS LIMITED OR ANY PERSON ACTING FOR HIM MAY OVER-ALLOT OR EFFECT TRANSACTIONS WITH A VIEW TO SUPPORTING THE MARKET PRICE OF THE NOTES AT A LEVEL HIGHER THAN THAT WHICH MIGHT OTHERWISE PREVAIL FOR A LIMITED PERIOD AFTER THE CLOSING DATE. HOWEVER THERE MAY BE NO OBLIGATION ON UBS LIMITED OR ANY AGENT OF UBS LIMITED TO DO THIS. SUCH STABILISING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME AND MUST BE BROUGHT TO AN END AFTER A LIMITED PERIOD. 2

3 CONTENTS Documents Incorporated by Reference... 4 Conditions of the A Notes... 5 Conditions of the B Notes Summary of Provisions Relating to the Notes while Represented by the Global Notes Use of Proceeds Capitalisation of the Issuer Description of the Issuer Taxation Subscription and Sale General Information Page 3

4 DOCUMENTS INCORPORATED BY REFERENCE The Annual Reports of the Issuer for the years ended 31st December, 2002 and 2003 and the unaudited interim non-consolidated financial statements of the Issuer as at, and for the six month period ended, 30th June, 2004 are incorporated by reference and form part of this Offering Circular. Copies of these financial statements and Annual Reports are available, free of charge, at the specified office of the Paying Agent in Luxembourg as described in General Information below, for as long as any of the Notes remain outstanding. Any statement contained herein or in a document which is deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purpose of this Offering Circular to the extent that a statement contained in any such subsequent document which is deemed to be incorporated by reference herein modifies or supersedes such earlier statement (whether expressly, by implication or otherwise). Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Offering Circular. 4

5 CONDITIONS OF THE A NOTES The following is the text of the Conditions of the A Notes which will be endorsed on each Note in definitive form (if issued): The A800,000, per cent. Notes due 2024 (the Notes, which expression shall in these Conditions, unless the context otherwise requires, include any further notes issued pursuant to Condition 15 and forming a single series with the Notes) of T.E.R.NA. Trasmissione Elettricità Rete Nazionale S.p.A. (the Issuer) are constituted by a Trust Deed dated 28th October, 2004 (the Trust Deed) made between the Issuer and J. P. Morgan Corporate Trustee Services Limited (the Trustee, which expression shall include its successor(s)) as trustee for the holders of the Notes (the Noteholders) and the holders of the interest coupons appertaining to the Notes (the Couponholders and the Coupons respectively). The statements in these Conditions include summaries of, and are subject to, the detailed provisions of and definitions in the Trust Deed. Copies of the Trust Deed and the Agency Agreement dated 28th October, 2004 (the Agency Agreement) made between the Issuer, the initial paying agents named therein (together with any successor or additional paying agent, the Paying Agents) and the Trustee are available for inspection during normal business hours at the registered office for the time being of the Trustee, being at the date of issue of the Notes at Trinity Tower, 9 Thomas More Street, London E1W 1YT and at the specified office of each of the Paying Agents. The Noteholders and the Couponholders are entitled to the benefit of, are bound by, and are deemed to have notice of, all the provisions of the Trust Deed and the Agency Agreement applicable to them. 1. FORM, DENOMINATION AND TITLE 1.1 Form and Denomination 1.2 Title The Notes are in bearer form, serially numbered, in the denomination of A50,000 and integral multiples of A1,000 above A50,000, each with Coupons attached on issue. In the event that definitive Notes are issued and the Notes are listed on the Luxembourg Stock Exchange, the Issuer will advise the Luxembourg Stock Exchange of the denominations in which they are issued. Title to the Notes and to the Coupons will pass by delivery. 1.3 Holder Absolute Owner The Issuer, any Paying Agent and the Trustee may (to the fullest extent permitted by applicable laws) deem and treat the bearer of any Note or Coupon as the absolute owner for all purposes (whether or not the Note or Coupon shall be overdue and notwithstanding any notice of ownership or writing on the Note or Coupon or any notice of previous loss or theft of the Note or Coupon or of any trust or interest therein) and shall not be required to obtain any proof thereof or as to the identity of such bearer. 2. STATUS The Notes and the Coupons are direct, unconditional and (subject to the provisions of Condition 3) unsecured obligations of the Issuer and (subject as provided above) rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future (save for such obligations as may be preferred by mandatory provisions of law) but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors rights. 5

6 3. NEGATIVE PLEDGE So long as any of the Notes remains outstanding (as defined in the Trust Deed), the Issuer will not, and will ensure that none of its Material Subsidiaries will, create or permit to subsist any Security upon the whole or any part of its assets or revenues, present or future, to secure any Indebtedness, except for Permitted Encumbrances, unless: (a) (b) the same Security shall forthwith be extended equally and rateably to the Notes and the Coupons to the satisfaction of the Trustee; or such other Security or guarantee (or other arrangement) as (i) the Trustee in its absolute discretion deems not materially less beneficial to the interests of the Noteholders or (ii) shall be approved by an Extraordinary Resolution of the Noteholders, shall previously have been or shall forthwith be extended equally and rateably to the Notes and the Coupons. As used herein: Group means the Issuer and its Subsidiaries; Indebtedness means any present or future indebtedness for borrowed money which is in the form of, or represented by, bonds, notes, debentures or other securities and which is or are intended to be quoted, listed or ordinarily dealt in on any stock exchange, over-the-counter or regulated securities market; Material Subsidiary means any consolidated Subsidiary of the Issuer: (a) (b) whose total assets (consolidated in the case of a Subsidiary which itself has Subsidiaries) represent not less than 10 per cent. of the consolidated total assets of the Issuer and its Subsidiaries taken as a whole, as calculated respectively by reference to the then latest audited accounts (consolidated or, as the case may be, unconsolidated) of the Subsidiary and the then latest audited consolidated accounts of the Issuer and its Subsidiaries, or to which is transferred the whole or substantially the whole of the undertaking and assets of a Subsidiary of the Issuer which immediately before the transfer is a Material Subsidiary of the Issuer. A report by two Directors of the Issuer whether or not addressed to the Trustee that in their opinion a Subsidiary of the Issuer is or is not or was or was not at any particular time or throughout any specified period a Material Subsidiary may be relied upon by the Trustee without further enquiry or evidence and, if relied upon by the Trustee, shall, in the absence of manifest or (to the satisfaction of the Trustee) proven error, be conclusive and binding on all parties; Permitted Encumbrances means: (a) (b) (c) (d) (e) any Security arising pursuant to any mandatory provision of law other than as a result of any action taken by the Issuer; or any Security in existence as at the date of issuance of the Notes; or in the case of any entity which becomes a Subsidiary of any member of the Group after the date of issuance of the Notes, any Security existing over such entity s assets at the time it becomes such a Subsidiary, provided that the Security was not created in contemplation of, or in connection with, it becoming a Subsidiary and the amounts secured have not been increased in contemplation of, or in connection with, such acquisitions; or any Security securing Project Finance Indebtedness; or any Security which is created in connection with, or pursuant to, a limited-recourse financing, securitisation or other like arrangement where the payment obligations in respect of the indebtedness secured by the relevant Security are to be discharged solely from the revenues 6

7 generated by the assets over which such Security is created (including, without limitation, receivables) provided that the aggregate book value of the assets over which such Security is created shall not exceed A400,000,000 or, if greater, 10 per cent. of the consolidated net worth of the Group; or (f) any Security created after the date of issue of the Notes on any asset acquired by the person creating the Security and securing only Indebtedness incurred for the sole purpose of financing or re-financing that acquisition provided that the principal amount of such Indebtedness so secured does not exceed the overall cost of that acquisition. Person means any individual, company, corporation, firm, partnership, joint venture, association, organisation, state or agency of a state or other entity, whether or not having separate legal personality; Project Finance Indebtedness means any present or future Indebtedness incurred in financing the ownership, acquisition, construction, development, leasing, maintenance and/or operation of an asset or assets, whether or not an asset of a member of the Group: (a) (b) which is incurred by a Project Finance Subsidiary; or in respect of which the Person or Persons to whom any such Indebtedness is or may be owed by the relevant borrower (whether or not a member of the Group) has or have no recourse whatsoever to any member of the Group (other than a Project Finance Subsidiary) for the repayment thereof other than: (i) (ii) recourse for amounts limited to the cash flow or the net cash flow (other than historic cash flow or historic net cash flow) from such asset or assets or the income or other proceeds deriving therefrom; and/or recourse for the purpose only of enabling amounts to be claimed in respect of such Indebtedness in an enforcement of any Security given by such borrower over such asset or assets or the income, cash flow or other proceeds, deriving therefrom (or given by any shareholder or the like in the borrower over its shares or the like in the capital of the borrower) to secure such Indebtedness, provided that (a) the extent of such recourse is limited solely to the amount of any recoveries made on any such enforcement, and (b) such Person or Persons is/are not entitled, by virtue of any right or claim arising out of or in connection with such Indebtedness, to commence any proceedings of whatever nature against any member of the Group (other than a Project Finance Subsidiary). Project Finance Subsidiary means any Subsidiary of the Issuer either: (a) (i) which is a single purpose company whose principal assets and business are constituted by the ownership, acquisition, construction, development, leasing, maintenance and/or operation of an asset or assets; and (ii) none of whose Indebtedness in respect of the financing of such ownership, acquisition, construction, development, leasing, maintenance and/or operation of an asset or assets is subject to any recourse whatsoever to any member of the Group (other than such Subsidiary or another Project Finance Subsidiary) in respect of the repayment thereof, except as expressly referred to in sub-paragraph (ii) of the definition of Project Finance Indebtedness; or (b) at least 70 per cent. in principal amount of whose Indebtedness is Project Finance Indebtedness. Security means any mortgage, lien, pledge, charge or other security interest; Subsidiary means, in respect of any Person (the first Person) at any particular time, any other Person (the second Person): 7

8 (i) (ii) (iii) whose majority of votes in ordinary shareholders meetings of the second Person is held by the first Person; or in which the first Person holds a sufficient number of votes giving the first Person a dominant influence in ordinary shareholders meetings of the second Person; or whose accounts are required to be consolidated with those of the First Person pursuant to article 26 of Law 127 of 1991; (in the case of (i) and (ii) pursuant to the provisions of Article 2359, first paragraph, no. 1 and no. 2, of the Italian Civil Code). 4. INTEREST 4.1 Interest Rate and Interest Payment Dates The Notes bear interest from and including 28th October, 2004 at the rate of 4.90 per cent. per annum, payable annually in arrear on 28th October (each an Interest Payment Date). The first payment (representing a full year s interest) and amounting to A49 per A1,000 principal amount of Notes) shall be made on 28th October, Interest Accrual Each Note will cease to bear interest from and including its due date for redemption unless, upon due presentation, payment of the principal in respect of the Note is improperly withheld or refused or unless default is otherwise made in respect of payment, in which event interest shall continue to accrue as provided in the Trust Deed. 4.3 Calculation of Broken Interest When interest is required to be calculated in respect of a period of less than a full year, it shall be calculated on the basis of (a) the actual number of days in the period from and including the date from which interest begins to accrue (the Accrual Date) to but excluding the date on which it falls due divided by (b) the actual number of days from and including the Accrual Date to but excluding the next following Interest Payment Date. 5. PAYMENTS 5.1 Payments in respect of Notes Payments of principal and interest in respect of each Note will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Note, except that payments of interest due on an Interest Payment Date will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Coupon, in each case at the specified office outside the United States of any of the Paying Agents. 5.2 Method of Payment Payments will be made by credit or transfer to a euro account (or any other account to which euro may be credited or transferred) specified by the payee or, at the option of the payee, by euro cheque. 5.3 Missing Unmatured Coupons Each Note should be presented for payment together with all relative unmatured Coupons, failing which the full amount of any relative missing unmatured Coupon (or, in the case of payment not being made in full, that proportion of the full amount of the missing unmatured Coupon which the amount so paid bears to the total amount due) will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner mentioned above against presentation and surrender 8

9 (or, in the case of part payment only, endorsement) of the relative missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 7) in respect of the relevant Note (whether or not the Coupon would otherwise have become void pursuant to Condition 8) but not thereafter. 5.4 Payments subject to Applicable Laws Payments in respect of principal and interest on the Notes are subject in all cases to any fiscal or other laws and regulations applicable in the place of payment, but without prejudice to the provisions of Condition Payment only on a Presentation Date A holder shall be entitled to present a Note or Coupon for payment only on a Presentation Date and shall not, except as provided in Condition 4, be entitled to any further interest or other payment if a Presentation Date is after the due date. Presentation Date means a day which (subject to Condition 8): (a) (b) (c) is or falls after the relevant due date; is a Business Day in the place of the specified office of the Paying Agent at which the Note or Coupon is presented for payment; and in the case of payment by credit or transfer to a euro account as referred to above, is a TARGET Settlement Day. In this Condition, Business Day means, in relation to any place, a day on which commercial banks and foreign exchange markets settle payments and are open for general business (including dealing in foreign exchange and foreign currency deposits) in that place and TARGET Settlement Day means any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) system is open. 5.6 Initial Paying Agents The names of the initial Paying Agents and their initial specified offices are set out at the end of these Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Paying Agent and to appoint additional or other Paying Agents provided that: (a) (b) (c) there will at all times be a Principal Paying Agent; there will at all times be at least one Paying Agent (which may be the Principal Paying Agent) having its specified office in a European city outside the Republic of Italy (Italy) which so long as the Notes are listed on the Luxembourg Stock Exchange shall be Luxembourg; and the Issuer undertakes that it will ensure that it maintains a Paying Agent in a Member State of the European Union that is not obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26th-27th November, 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive. Notice of any termination or appointment and of any changes in specified offices will be given to the Noteholders promptly by the Issuer in accordance with Condition 11. 9

10 6. REDEMPTION AND PURCHASE 6.1 Redemption at Maturity Unless previously redeemed or purchased and cancelled as provided below, the Issuer will redeem the Notes at their principal amount on 28th October, Redemption for Taxation Reasons If the Issuer satisfies the Trustee immediately before the giving of the notice referred to below that: (a) (b) as a result of any change in, or amendment to, the laws or regulations of a Relevant Jurisdiction (as defined in Condition 7), or any change in the application or official interpretation of the laws or regulations of a Relevant Jurisdiction, which change or amendment becomes effective after 26th October, 2004, on the next Interest Payment Date the Issuer would be required to pay additional amounts as provided or referred to in Condition 7; and the requirement cannot be avoided by the Issuer taking reasonable measures available to it, the Issuer may at its option, having given not less than 30 nor more than 60 days notice to the Noteholders in accordance with Condition 12 (which notice shall be irrevocable), redeem all the Notes, but not some only, at any time at their principal amount together with interest accrued to but excluding the date of redemption, provided that no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be required to pay such additional amounts, were a payment in respect of the Notes then due. Prior to the publication of any notice of redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee a certificate signed by two Authorised Officers (as defined in the Trust Deed) of the Issuer stating that the requirement referred to in (a) above will apply on the next Interest Payment Date and cannot be avoided by the Issuer taking reasonable measures available to it and an opinion of independent legal advisers of recognised standing to the effect that the Issuer has or will become required to pay such additional amounts as a result of the change or amendment and the Trustee shall be entitled to accept such certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent set out above, in which event they shall be conclusive and binding on the Noteholders and the Couponholders. 6.3 Purchases The Issuer or any of its Subsidiaries (as defined above) may at any time purchase Notes (provided that all unmatured Coupons appertaining to the Notes are purchased with the Notes) in any manner and at any price. If purchases are made by tender, tenders must be available to all Noteholders alike. 6.4 Cancellations All Notes which are (a) redeemed or (b) purchased by or on behalf of the Issuer or any of its Subsidiaries will forthwith be cancelled, together with all relative unmatured Coupons attached to the Notes or surrendered with the Notes, and accordingly may not be held, reissued or resold. 6.5 Notices Final Upon the expiry of any notice as is referred to in paragraph 6.2 above the Issuer shall be bound to redeem the Notes to which the notice refers in accordance with the terms of such paragraph. 7. TAXATION 7.1 Payment without Withholding All payments in respect of the Notes by or on behalf of the Issuer shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental 10

11 charges of whatever nature (Taxes) imposed or levied by or on behalf of the Relevant Jurisdiction, unless the withholding or deduction of the Taxes is required by law. In that event, the Issuer will pay such additional amounts as may be necessary in order that the net amounts received by the Noteholders and Couponholders after the withholding or deduction shall equal the respective amounts which would have been receivable in respect of the Notes or, as the case may be, Coupons in the absence of the withholding or deduction; except that no additional amounts shall be payable in relation to any payment in respect of any Note or Coupon: (a) (b) (c) (d) (e) (f) (g) presented for payment by, or on behalf of, a holder who is liable for such Taxes in respect of the Note or Coupon by reason of his having some connection with the Relevant Jurisdiction other than the mere holding of the Note or Coupon; or presented for payment by, or on behalf of, a holder who would be able to avoid such withholding or deduction by making a declaration or any other statement, including but not limited to a declaration of residence or non-residence, but fails to do so; or presented for payment by, or on behalf of, a holder who would be able to avoid such withholding or deduction by presenting the relevant Note and/or Coupon to another Paying Agent in a Member State of the European Union, but fails to do so; or presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that a holder thereof would have been entitled to an additional amount on presenting the same for payment on such thirtieth day assuming that day to have been a Presentation Date (as defined in Condition 5); or where such withholding or deduction is imposed on a payment to an individual resident outside Italy and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26th-27th November, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive; or on account of imposta sostitutiva pursuant to Italian Legislative Decree No. 239 of 1st April, 1996 (Legislative Decree No. 239) and any related implementing regulations as in force on the date of the issue of the Notes in all circumstances in which the procedures set forth in Legislative Decree No. 239 have not been met or complied with, except where such procedures have not been met or complied with due to the actions or omissions of the Issuer or its agents; or in the event of payment to a non-italian resident legal entity or a non-italian resident individual, to the extent that interest or other amounts are paid to a non-italian resident legal entity or a non-italian resident individual which is resident in a country which does not allow for a satisfactory exchange of information with Italy. 7.2 Interpretation In these Conditions: (a) (b) Relevant Date means the date on which the payment first becomes due but, if the full amount of the money payable has not been received by the Principal Paying Agent or the Trustee on or before the due date, it means the date on which, the full amount of the money having been so received, notice to that effect has been duly given to the Noteholders by the Issuer in accordance with Condition 12; and Relevant Jurisdiction means Italy or any political subdivision or any authority thereof or therein having power to tax or any other jurisdiction or any political subdivision or any authority thereof or therein having power to tax to which the Issuer becomes subject in respect of payments made by it of principal and interest on the Notes and Coupons. 11

12 7.3 Additional Amounts Any reference in these Conditions to any amounts in respect of the Notes shall be deemed also to refer to any additional amounts which may be payable under this Condition or under any undertakings given in addition to, or in substitution for, this Condition pursuant to the Trust Deed. 8. PRESCRIPTION Claims for payment in respect of a Note or Coupon will become void unless presentation for payment is made within a period of 10 years (in the case of principal) and five years (in the case of interest) from the Relevant Date in respect of the Notes or, as the case may be, the Coupon, subject to the provisions of Condition EVENTS OF DEFAULT The Trustee at its discretion may, and if so requested in writing by the holders of at least one-fifth in principal amount of the Notes then outstanding or if so directed by an Extraordinary Resolution of the Noteholders shall (subject in each case to being indemnified and/or secured to its satisfaction), (but, in the case of the happening of any of the events described in subparagraphs (c) and (e) to (h) inclusive, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly forthwith become, immediately due and repayable at their principal amount, together with accrued interest as provided in the Trust Deed, in any of the following events (Events of Default): (a) (b) (c) (d) (e) if default is made for a period of 10 days or more in the payment of principal of or any interest in respect of the Notes or any of them after the due date thereof; or if the Issuer shall be adjudicated or becomes insolvent or shall stop payment or announce that it shall stop payment or shall be found unable to pay all or substantially all of its debts, or any order shall be made by any competent court or other competent body for, or any resolution shall be passed by the Issuer for judicial composition proceedings with its creditors or for the appointment of a receiver, administrative receiver or trustee or other similar official in insolvency proceedings in relation to the Issuer; or if the Issuer fails to pay a final judgment (sentenza passata in giudicato, in the case of a judgment issued by an Italian court) of a court of competent jurisdiction within 60 days from the receipt of a notice that a final judgment in excess of an amount equal to the value of a substantial part of the assets or property of the Issuer has been entered against it or an execution is levied, enforced upon or sued out against any substantial part of the assets or property of the Issuer pursuant to any such judgment; or if the Issuer shall be wound up or dissolved (otherwise than for the purpose of a solvent amalgamation, merger, de-merger or reconstruction (a Solvent Reorganisation) (i) to be adopted or implemented pursuant to any mandatory provisions of law or (ii) on terms approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, and (in the case of (i) and (ii)) under which the assets and liabilities of the Issuer are assumed by the entity resulting from such Solvent Reorganisation and such entity assumes all the obligations of the Issuer in respect of the Notes, the Coupons and the Trust Deed and an opinion of an independent legal adviser of recognised standing in Italy has been delivered to the Trustee confirming the same prior to the effective date of such Solvent Reorganisation); or if the Issuer shall cease or announce that it shall cease to carry on all or substantially all of its business or shall dispose of all or substantially all of its assets (in each case otherwise than for the purpose of a Solvent Reorganisation (i) to be adopted or implemented pursuant to any mandatory provisions of law or (ii) on terms approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, and (in the case of (i) and (ii)) under which the 12

13 assets and liabilities of the Issuer are assumed by the entity resulting from such Solvent Reorganisation and such entity assumes all the obligations of the Issuer in respect of the Notes, the Coupons and the Trust Deed and an opinion of an independent legal adviser of recognised standing in Italy has been delivered to the Trustee confirming the same prior to the effective date of such Solvent Reorganisation); or (f) (g) (h) if any Indebtedness for Borrowed Money of the Issuer becomes due and repayable prematurely by reason of an event of default (however described), or the Issuer fails to make any payment in respect of any Indebtedness for Borrowed Money on the due date for payment (as extended by any originally applicable grace period) or default is made by the Issuer in making any payment due under any guarantee and/or indemnity given by it in relation to any Indebtedness for Borrowed Money of any other person (as extended by any originally applicable grace period), provided that no such event shall constitute an Event of Default so long as and to the extent that the Issuer is contesting, in good faith, in a competent court in a recognised jurisdiction or before a competent arbitration panel that the relevant Indebtedness for Borrowed Money or any such guarantee and/or indemnity shall be due or enforceable, as appropriate, and provided further that no such event shall constitute an Event of Default unless the aggregate Indebtedness for Borrowed Money relating to all such events which shall have occurred and be continuing shall exceed A20,000,000 (or its equivalent in any other currency); or any Security (other than any Security securing Project Finance Indebtedness), present or future, created or assumed on or against all or a material part of the property, assets or revenues of the Issuer, becomes enforceable and any step is taken to enforce it (including the taking of possession or the appointment of a receiver, manager or other similar person), which is not discharged within 30 days of such enforcement; or if the Issuer fails to perform or observe any of its other obligations under these Conditions or the Trust Deed and (except in any case where the Trustee considers the failure to be incapable of remedy, when no continuation or notice as is hereinafter mentioned will be required) the failure continues for the period of 30 days (or such longer period as the Trustee may permit) following the service by the Trustee on the Issuer of notice requiring the same to be remedied. For the purposes of this Condition: Indebtedness for Borrowed Money means any present or future indebtedness (whether being principal, premium, interest or other amounts) for or in respect of (i) money borrowed, (ii) liabilities under or in respect of any acceptance or acceptance credit or (iii) any notes, bonds, debentures, debenture stock, loan stock or other securities offered, issued or distributed whether by way of public offer, private placing, acquisition consideration or otherwise and whether issued for cash or in whole or in part for a consideration other than cash. 10. ENFORCEMENT 10.1 Enforcement by the Trustee The Trustee may at any time, at its discretion and without notice, take such proceedings against the Issuer as it may think fit to enforce the provisions of the Trust Deed, the Notes and the Coupons, but it shall not be bound to take any such proceedings or any other action in relation to the Trust Deed, the Notes or the Coupons unless (a) it has been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-fifth in principal amount of the Notes then outstanding and (b) it has been indemnified and/or secured to its satisfaction Enforcement by the Noteholders No Noteholder or Couponholder shall be entitled to proceed directly against the Issuer unless the Trustee, having become bound so to proceed, fails so to do within a reasonable period and the failure shall be continuing. 13

14 11. REPLACEMENT OF NOTES AND COUPONS Should any Note or Coupon be lost, stolen, mutilated, defaced or destroyed it may be replaced at the specified office of the Principal Paying Agent or the Paying Agent in Luxembourg upon payment by the claimant of the expenses incurred in connection with the replacement and on such terms as to evidence and indemnity as the Issuer may reasonably require. Mutilated or defaced Notes or Coupons must be surrendered before replacements will be issued. 12. NOTICES All notices to the Noteholders will be valid if published in a leading English language daily newspaper published in London or such other English language daily newspaper with general circulation in Europe as the Trustee may approve and, so long as the Notes are listed on the Luxembourg Stock Exchange and the rules of that exchange so require, in one leading newspaper of general circulation in Luxembourg. It is expected that publication will normally be made in the Financial Times and the Luxemburger Wort or the Tageblatt. The Issuer shall also ensure that notices are duly published in a manner which complies with the rules and regulations of any stock exchange or other relevant authority on which the Notes are for the time being listed. Any such notice will be deemed to have been given on the date of the first publication or, where required to be published in more than one newspaper, on the date of the first publication in all required newspapers. If publication as provided above is not practicable, notice will be given in such other manner, and shall be deemed to have been given on such date, as the Trustee may approve. Couponholders will be deemed for all purposes to have notice of the contents of any notice given to the Noteholders in accordance with this paragraph. 13. MEETINGS OF NOTEHOLDERS, MODIFICATION, WAIVER, AUTHORISATION AND DETERMINATION 13.1 Meetings of Noteholders The Trust Deed contains provisions for convening meetings of the Noteholders to consider any matter affecting their interests, including the modification or abrogation by Extraordinary Resolution of any of these Conditions or any of the provisions of the Trust Deed. The directors of the Issuer and/or the Noteholders Representative (as defined below) at their discretion may, and if so requested in writing by the holders of at least 5 per cent. in principal amount of the Notes for the time being outstanding shall, convene a meeting. To be validly held, each such meeting must be quorate which shall mean (i) in the case of a first meeting, there are one or more persons present being or representing Noteholders holding at least one half in aggregate principal amount of the Notes for the time being outstanding, (ii) in the case of an adjourned meeting, there are one or more persons present being or representing Noteholders holding more than one third in aggregate principal amount of the Notes for the time being outstanding and (iii) in the case of a further adjourned meeting, there are one or more persons present being or representing Noteholders holding at least one fifth in aggregate principal amount of the Notes for the time being outstanding. The majority required to pass an Extraordinary Resolution at any meeting (including any adjourned meeting) will be one or more persons holding or representing at least two thirds in aggregate principal amount of the Notes represented at the meeting; provided, however, that certain proposals, as set out in Article 2415 of the Italian Civil Code (including any proposal to modify the maturity of the Notes or the dates on which interest is payable on them; to reduce or cancel the principal amount of, or interest on, the Notes; or to change the currency of payment of the Notes) may only be sanctioned by an Extraordinary Resolution passed at a meeting of Noteholders (including any adjourned meeting) by one or more persons holding or representing not less than one half in aggregate principal amount of the Notes for the time being outstanding. Any Extraordinary Resolution duly passed at any such meeting shall be binding on all the Noteholders, whether present or not and on all Couponholders. 14

15 13.2 Noteholders Representative A representative of the Noteholders (rappresentante comune) (the Noteholders Representative) (who might, subject to the mandatory provisions of Italian law, also be the same legal entity as the Trustee) may be appointed pursuant to Article 2417 of the Italian Civil Code in order to represent the Noteholders interests under these Conditions and to give effect to resolutions passed at a meeting of the Noteholders. If the Noteholders Representative is not appointed by a meeting of such Noteholders, the Noteholders Representative shall be appointed by a decree of the President of the Court where the Issuer has its registered office at the request of one or more Noteholders or at the request of the directors of the Issuer. The Noteholders Representative shall remain appointed for a maximum period of three years but may be re-appointed again thereafter Modification, Waiver, Authorisation and Determination The Trustee may agree, without the consent of the Noteholders or Couponholders, to any modification of, or to the waiver or authorisation of any breach or proposed breach of, any of these Conditions or any of the provisions of the Trust Deed, or determine, without any such consent as aforesaid, that any Event of Default or Potential Event of Default (as defined in the Trust Deed) shall not be treated as such (provided that, in any such case, it is not, in the opinion of the Trustee, materially prejudicial to the interests of the Noteholders or may agree, without any such consent as aforesaid, to any modification which is of a formal, minor or technical nature or to correct a manifest or (to the satisfaction of the Trustee) proven error Trustee to have Regard to Interests of Noteholders as a Class In connection with the exercise by it of any of its trusts, powers, authorities and discretions (including, without limitation, any modification, waiver, authorisation or determination), the Trustee shall have regard to the general interests of the Noteholders as a class but shall not have regard to any interests arising from circumstances particular to individual Noteholders or Couponholders (whatever their number) and, in particular but without limitation, shall not have regard to the consequences of any such exercise for individual Noteholders or Couponholders (whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Noteholder or Couponholder be entitled to claim, from the Issuer, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Noteholders or Couponholders except to the extent already provided for in Condition 7 and/or any undertaking given in addition to, or in substitution for, Condition 7 pursuant to the Trust Deed Notification to the Noteholders Any modification, abrogation, waiver, authorisation or determination shall be binding on the Noteholders and the Couponholders and, unless the Trustee agrees otherwise, any modification or substitution shall be notified by the Issuer to the Noteholders as soon as practicable thereafter in accordance with Condition INDEMNIFICATION OF THE TRUSTEE AND ITS CONTRACTING WITH THE ISSUER 14.1 Indemnification of the Trustee The Trust Deed contains provisions for the indemnification of the Trustee and for its relief from responsibility, including provisions relieving it from taking action unless indemnified and/or secured to its satisfaction. 15

16 14.2 Trustee Contracting with the Issuer The Trust Deed also contains provisions pursuant to which the Trustee is entitled, inter alia, (a) to enter into business transactions with the Issuer and/or any of the Issuer s Subsidiaries and to act as trustee for the holders of any other securities issued or guaranteed by, or relating to, the Issuer and/or any of the Issuer s Subsidiaries, (b) to exercise and enforce its rights, comply with its obligations and perform its duties under or in relation to any such transactions or, as the case may be, any such trusteeship without regard to the interests of, or consequences for, the Noteholders or Couponholders, and (c) to retain and not be liable to account for any profit made or any other amount or benefit received thereby or in connection therewith. 15. FURTHER ISSUES The Issuer shall be at liberty from time to time (but subject always to the provisions of these Conditions and the Trust Deed) without the consent of the Noteholders or Couponholders to create and issue further notes ranking pari passu in all respects (or in all respects save for the issue price and the first payment of interest thereon), and so that the same shall be consolidated and form a single series, with the Notes. 16. GOVERNING LAW AND SUBMISSION TO JURISDICTION 16.1 Governing Law The Trust Deed, the Notes and the Coupons are governed by, and will be construed in accordance with English law Jurisdiction of English Courts The Issuer has, in the Trust Deed, irrevocably agreed for the benefit of the Trustee, the Noteholders and the Couponholders that the courts of England are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Trust Deed, the Notes or the Coupons and accordingly has submitted to the exclusive jurisdiction of the English courts. The Issuer has, in the Trust Deed, waived any objection to the courts of England on the grounds that they are an inconvenient or inappropriate forum. The Trustee, the Noteholders and the Couponholders may take any suit, action or proceeding arising out of or in connection with the Trust Deed, the Notes or the Coupons respectively (together referred to as Proceedings) against the Issuer in any other court of competent jurisdiction and concurrent Proceedings in any number of jurisdictions Appointment of Process Agent The Issuer has, in the Trust Deed, irrevocably and unconditionally appointed Fleetside Legal Representative Services Limited of 9 Cheapside, London EC2V 6AD as its agent for service of process in England in respect of any Proceedings and has undertaken that in the event of such agent ceasing so to act it will appoint such other person as the Trustee may approve as its agent for that purpose. 17. RIGHTS OF THIRD PARTIES No rights are conferred on any person under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Note, but this does not affect any right or remedy of any person which exists or is available apart from that Act. 16