-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ars71uIvR/Mb6pWjOakAyaFVSgmzE+60OFOFDySw/AVGkD4srlxAHwedsUrm9A5a f8g6dgc0gw1thT6kEVE0fA== 0000947871-07-000436.txt : 20070320 0000947871-07-000436.hdr.sgml : 20070320 20070320172628 ACCESSION NUMBER: 0000947871-07-000436 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20070320 DATE AS OF CHANGE: 20070320 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ENDESA SA CENTRAL INDEX KEY: 0001046649 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 000000000 STATE OF INCORPORATION: U3 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-80961 FILM NUMBER: 07707311 BUSINESS ADDRESS: STREET 1: CALLE RIBERA DEL LOIRA 60 CITY: MADRID STATE: U3 ZIP: 28042 BUSINESS PHONE: 34-91-2131000 MAIL ADDRESS: STREET 1: 410 PARK AVE STREET 2: STE 410 CITY: NEW YORK STATE: NY ZIP: 10022 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Mediobanca - Banca di Credito Finanziario SpA CENTRAL INDEX KEY: 0001379481 IRS NUMBER: 000000000 STATE OF INCORPORATION: L6 FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: PIAZZETTA ENRICO CUCCIA, 1 CITY: MILAN STATE: L6 ZIP: 20121 BUSINESS PHONE: 011 39 02 88291 MAIL ADDRESS: STREET 1: PIAZZETTA ENRICO CUCCIA, 1 CITY: MILAN STATE: L6 ZIP: 20121 SC 13D 1 sc13d.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. ___)*

Endesa, S.A.

(Name of Issuer)

Ordinary Shares, nominal value € 1.20 each

(Title of Class of Securities)

00029274F1

(CUSIP Number)

MEDIOBANCA S.p.A.

Attn: Director, Office of Compliance

Piazzetta Enrico Cuccia, 1

20121 Milan, Italy

+39 06 6990184

(Name, Address and Telephone Number of Person Authorized

to Receive Notices and Communications)

March 2, 2007

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box o.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

(Continued on following pages)

(Page 1 of 10)

SCHEDULE 13D

CUSIP No. 0029274F1

Page 2 of 10 Pages

1	NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Mediobanca – Banca di Credito Finanziario S.p.A.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) o (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS (See Instructions) WC – See Item 3 below.
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)				x
6	CITIZENSHIP OR PLACE OF ORGANIZATION Italy
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER 84,488,949
		8	SHARED VOTING POWER 0
		9	SOLE DISPOSITIVE POWER 84,488,949
		10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 84,488,949
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)			o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.0%
14	TYPE OF REPORTING PERSON (See Instructions) BK

Page 2 of 10

1.	Security and Issuer.

The equity securities to which this statement relates are the ordinary shares, nominal value € 1.20 each (the “Endesa Shares”), of Endesa S.A. (the “Issuer”), a corporation organized under the laws of Spain, whose principal executive offices are located at Ribera del Loira, 60, 28042 Madrid, Spain.

2.	Identity and Background.

This Schedule is being filed by MEDIOBANCA – Banca di Credito Finanziario Società per Azioni, in abbreviated form MEDIOBANCA S.p.A (the “Reporting Person”), an Italian corporation organized under the laws of Italy, whose head office and principal executive offices are located in Piazzetta Enrico Cuccia 1, 20121 Milan, Italy. The principal business of the Reporting Person is to raise funds and provide credit in any of the forms permitted, especially medium- and long-term credit to corporations. Within the limits permitted under current European and Italian banking regulations, the Reporting Person may execute all banking, financial and intermediation-related transactions and/or services and carry out any transaction deemed to be instrumental to or otherwise connected with the achievement of its corporate purpose.

The names, citizenship, business addresses and principal occupations or employments of the executive officers and directors of the Reporting Person are set forth in Annex A, which is incorporated herein by reference.

During the last five years, except as set forth in the paragraph below, neither the Reporting Person nor, to the Reporting Person’s best knowledge, any of the persons listed in Annex A, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

On December 7, 2006, two members of the board of directors of the Reporting Person, Mr. Roberto Colaninno and Mr. Cesare Geronzi, were convicted in the court of first instance of offenses in connection with the bankruptcy of companies of the Bagaglino/Italcase group. Mr Colaninno was convicted in the court of first instance of “simple bankruptcy” pursuant to Article 217 of the Italian Criminal Code and of “fraudulent bankruptcy” involving preferential treatment of selected creditors pursuant to Article 216 of the Italian Criminal Code. Mr. Geronzi was convicted in the court of first instance of “simple bankruptcy”. Both Mr. Colaninno and Mr. Geronzi have appealed their convictions. As required by Italian law, Mr. Colaninno and Mr. Geronzi were suspended from their positions as directors of the Reporting Person at the first board meeting held following the court’s decision. Italian law provides that the shareholders, at the next general meeting to be held following such suspension, may resolve either to dismiss the suspended directors or reinstate them to office pending final appeal of their convictions. Accordingly, the shareholders of the Reporting Person, at their general meeting held on January 29, 2007, voted in favor of the reinstatement of Mr. Colaninno and Mr. Geronzi as directors, pending final appeal of their convictions. In addition, a third member of the board, Mr. Gianluigi Gabetti, is currently suspended from office as director as a result of a decision by the Consob, the Italian financial market authority, to ban him from acting as a company director for six months starting from February 13, 2007. The Consob decision relates to Mr. Gabetti’s alleged provision of false information to the market in his capacity as chairman of the board of directors of IFIL S.p.A.. Mr. Gabetti has commenced proceedings in the Italian administrative courts to challenge the ban which, if he is successful, would result in the immediate lifting of the ban.

3.	Source and Amount of Funds or Other Consideration.

The source of funds for the purchases of the Endesa Shares by the Reporting Person was internal funds. The total amount paid for the 84,488,949 shares acquired as described in Item 4 below is € 3,295,069,011.

4.	Purpose of Transaction.

On March 1, 2007, the Reporting Person acquired 48,488,949 Endesa Shares, or approximately 4.58% of the outstanding Endesa Shares (based on 1,058,752,117 Endesa Shares outstanding as reported on the CNMV – Comisiòn Nacional del Mercado de Valores website as of March 19, 2007) in order to hedge the Reporting Person’s exposure to increases in the market price of the Endesa Shares arising from a total return equity swap transaction (the “Share Swap 1”) entered into with its client, Enel Energy Europe S.r.L (“Enel”). On March 2, 2007, the Reporting Person acquired an additional 4,500,000 Endesa Shares, or approximately 0.43% of the outstanding Endesa Shares, in order to hedge the Reporting Person’s exposure to increases in the market price of the Endesa Shares arising from a total return equity swap transaction (the “Share Swap 2”) entered into with its client Enel. On March 12, 2007, the Reporting Person acquired an additional 31,500,000 Endesa Shares, or approximately 2.98% of the outstanding Endesa Shares, in order to hedge the Reporting Person’s exposure to increases in the market price of the Endesa Shares arising from a total return equity swap transaction (the “Share Swap 3,” and, together with Share Swap 1 and Share Swap 2, the “Share Swaps”) entered into with its client Enel.

Under the Share Swaps, the Reporting Person assumes the risk of any increases in the price of the notional number of the Endesa Shares covered by the Share Swaps between the effective date of the swap transactions of March 1, March 2, and March 12, 2007, respectively, and June 1, June 1, and June 12, 2007, respectively, subject to any extension or early termination (the “Valuation Dates”). In order to hedge itself against this exposure, concurrently with the Share Swaps, the Reporting Person purchased a number of Endesa Shares equal to the notional number of Shares covered by the Share Swaps. The Share Swaps are evidenced by confirmation agreements dated March 1, 2007, March 2, 2007, and March 12, 2007, respectively. The principal terms and conditions of the Share Swaps are detailed below.

Share Swap 1

Trade Date:		March 1, 2007

Effective Date:		March 6, 2007

Number of Shares to which Share Swap 1 Relates:		48,488,949

Initial Price:		€39

Monthly Floating Payments owed by Enel:		Notional interest on (48,488,949 x €39.00) at one month Euribor +0.40%

If Physical Settlement is available (see below for conditions of such availability) and selected by Enel, the amount Enel is obligated to pay against delivery of shares on termination of the swap:		48,488,949 x €39.00

If Cash Settlement applies, Enel or Reporting Person is obligated to pay the other on termination of swap:

48,488,949 x (Average of the closing € Endesa Share price on June 1, 2007 and each of the five preceding trading days, minus €39.00). Reporting Person pays this amount to Enel if this amount is positive, but if the amount is negative, Enel pays the absolute value of this amount to the Reporting Person

Share Swap 2

Trade Date:		March 2, 2007

Effective Date:		March 7, 2007

Number of Shares to which Share Swap 2 Relates:		4,500,000

Initial Price:		€39

Monthly Floating Payments owed by Enel:		Notional interest on (4,500,000 x €39.00) at one month Euribor +0.40%

If Physical Settlement is available (see below for conditions of such availability) and selected by Enel, the amount Enel is obligated to pay against delivery of shares on termination of the swap:		4,500,000 x €39.00

If Cash Settlement applies, Enel or Reporting Person is obligated to pay the other on termination of swap:		4,500,000 x (Average of the closing € Endesa Share price on June 1, 2007 and each of the five preceding trading days, minus €39.00). Reporting Person pays this amount to Enel if this amount is positive, but if the amount is negative, Enel pays the absolute value of this amount to the Reporting Person

Share Swap 3

Trade Date:		March 12, 2007

Effective Date:		March 15, 2007

Number of Shares to which Share Swap 3 Relates:		31,500,000

Initial Price:		€39

Monthly Floating Payments owed by Enel:		Notional interest on (31,500,000 x €39.00) at one month Euribor +0.40%

If Physical Settlement is available (see below for conditions of such availability) and selected by Enel, the amount Enel is obligated to pay against delivery of shares on termination of the swap:		31,500,000 x €39.00

If Cash Settlement applies, Enel or Reporting Person is obligated to pay the other on termination of swap:

31,500,000 x (Average of the closing € Endesa Share price on June 12, 2007 and each of the five preceding trading days, minus €39.00). Reporting Person pays this amount to Enel if this amount is positive, but if the amount is negative, Enel pays the absolute value of this amount to the Reporting Person

Pursuant to the Share Swaps, by way of collateral, on the effective dates, Enel paid the Reporting Person an amount equal to 25% of the product of the number of Endesa Shares and Initial Price (being the volume-weighted average execution price per Endesa Share at which the Reporting Person actually established its hedge position) (the “Equity Notional Amount”). Specifically, on March 6, 2007, the Reporting Person received a collateral cash payment of €472,767,253 from Enel in connection with Share Swap 1. On March 7, 2007, the Reporting Person received a collateral cash payment of €43,875,000 from Enel in connection with Share Swap 2. On March 15, 2007, the Reporting Person received a collateral cash payment of €307,125,000 from Enel in connection with Share Swap 3. At the end of each period of approximately one calendar month thereafter, the Reporting Person or Enel, as the case may be, will make a payment to the other party by reference to the change in Endesa Share price, so as to reset the collateral deposit to reflect current Endesa Share prices. The Share Swaps will be cash settled, provided that Enel may elect physical settlement subject to the satisfaction of certain conditions, including the prior approval of the Comisiòn Nacional de Energia and compliance with all applicable laws and regulations. Enel also has a right of optional early termination, and a right to extend the maturity of the Share Swaps, in each case the right being subject to the satisfaction of certain conditions.

Copies of the confirmations dated March 1, 2007, March 2, 2007, and March 12, 2007 are attached hereto as Exhibits 1, 2, and 3 and are incorporated herein by reference.

ENEL S.p.A. has provided Guarantees of Liabilities arising from the Share Swaps dated March 1, 2007, March 2, 2007, and March 12, 2007, respectively, in favor of the Reporting Person. Copies of the Guarantees are attached hereto as Exhibits 4, 5, and 6, and are incorporated herein by reference.

On March 9, 2007, Enel and its parent company ENEL S.p.A. filed a Schedule 13D with respect to a total of 22% of outstanding Endesa Shares. On March 13, 2007, Enel and ENEL S.p.A. filed Amendment No. 1 to the Schedule 13D that it filed on March 9, 2007, with respect to 25% of outstanding Endesa Shares. Of the 25% reported by Enel and ENEL S.p.A., approximately 10% represents shares in respect of which Enel/ENEL S.p.A. has or shares voting power and dispositive power, and approximately 15% represents shares underlying the Share Swaps with the Reporting Person and share swaps with other entities.

The Endesa Shares were acquired by the Reporting Person for the purposes previously described and not with the purpose or effect of changing or influencing control of the Issuer. The Reporting Person and its affiliates review their respective holdings of the Issuer on an ongoing basis. Depending on such evaluations, the Reporting Person and its affiliates may from time to time in the future acquire additional shares in connection with the arrangements described above or engage in other investment and risk arbitrage activities. Except as otherwise described herein, the Reporting Person does not have any plans or proposals relating to or which would result in any of the transactions described in Items 4(a) - 4(j) of Schedule 13D.

5.	Interest in Securities of the Issuer.

(a)	This filing reflects Endesa Shares beneficially owned by the Reporting Person totaling 84,488,949 shares. This represents 8.0% of the outstanding Endesa Shares (based on 1,058,752,117 Endesa Shares outstanding as reported on the CNMV – Comisiòn Nacional del Mercado de Valores website on March 19, 2007). To the Reporting Person’s best knowledge, none of the directors or executive officers identified in Annex A own Endesa Shares.

(b)	The Reporting Person has the sole power to vote and the sole power to dispose its 84,488,949 Endesa Shares.

(c)	As required, the information set forth in Schedule A describes trading in the above mentioned class of securities that is considered reportable within the past 60 days or since the last 13D filing.

(d)	Not applicable.

(e)	Not applicable.

6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of Endesa.

	See description provided above in Item 4. To the best knowledge of the Reporting Person, no other contracts, arrangements, understandings, or relations (legal or otherwise) exist between the Reporting Person or any of the persons listed in Annex A, and any other person with respect to the securities of the Issuer.

7.	Materials to be Filed as Exhibits.

Exhibit 1:		Confirmation Agreement dated March 1, 2007, between Mediobanca – Banca di Credito Finanziario S.p.A. and Enel Energy Europe S.r.L. in respect of 48,488,949 ordinary shares of Endesa S.A.

Exhibit 2:		Confirmation Agreement dated March 2, 2007, between Mediobanca – Banca di Credito Finanziario S.p.A. and Enel Energy Europe S.r.L. in respect of 4,500,000 ordinary shares of Endesa S.A.

Exhibit 3:		Confirmation Agreement dated March 12, 2007, between Mediobanca – Banca di Credito Finanziario S.p.A. and Enel Energy Europe S.r.L. in respect of 31,500,000 ordinary shares of Endesa S.A.

Exhibit 4:		Guarantee dated March 1, 2007, by ENEL S.p.A. in favor of Mediobanca – Banca di Credito Finanziario S.p.A. in respect of liabilities arising from the Share Swap of 48,488,949 ordinary shares of Endesa S.A.

Exhibit 5:		Guarantee dated March 2, 2007, by ENEL S.p.A. in favor of Mediobanca – Banca di Credito Finanziario S.p.A. in respect of liabilities arising from the Share Swap of 4,500,000 ordinary shares of Endesa S.A.

Exhibit 6:		Guarantee dated March 12, 2007, by ENEL S.p.A. in favor of Mediobanca – Banca di Credito Finanziario S.p.A. in respect of liabilities arising from the Share Swap of 31,500,000 ordinary shares of Endesa S.A.

SIGNATURE

After reasonable inquiry and to the best of their knowledge and belief, each of the undersigned hereby certifies that the information set forth in this statement is true, complete and correct.

Dated: March 20, 2007



	/s/ Stefano Vincenzi
	Signature

	Stefano Vincenzi
	Director of Compliance
	Name/Title


	/s/ Francesco Carloni
	Signature


	Francesco Carloni
	Manager
	Name/Title

ANNEX A

REPORTING PERSON’S EXECUTIVE OFFICERS AND DIRECTORS

All of the persons listed below are of Italian citizenship, other than the following: Messrs. Rampl and Strutz (German), Messrs. Azema, Ben Ammar, Bernheim and Bolloré (French).

Office	Name and surname	Business Address	Term expires	Principal activities performed by the Directors outside Mediobanca	Endesa Shares Beneficially Owned (% of outstanding Endesa Shares)

Chairman	Gabriele GALATERI di GENOLA	MEDIOBANCA S.p.A. – Piazzetta E. Cuccia n. 1 – 20121 Milano	2009	Deputy Chairman Assicurazioni Generali Deputy Chairman RCS MediaGroup	None
Deputy Chairman	Cesare GERONZI	CAPITALIA – Via Minghetti n. 17 – 00187 Roma	2007	Chairman Capitalia	None
Deputy Chairman	Dieter RAMPL	UNICREDITO ITALIANO S.p.A. – Via San Protaso n. 3 – 20121 Milano	2009	Chairman and Member of Executive Committee UniCredito	None
Director	Matteo ARPE	CAPITALIA – Via Minghetti n. 17 – 00187 Roma	2009	Managing Director Capitalia	None
Director	Jean AZEMA	GROUPAMA (CCAMA) – 8-10, Rue d’Astorg – 75008 Parigi	2009	General Manager Groupama	None
Director	Tarak BEN AMMAR	QUINTA COMMUNICATIONS SA – 16, Avenue Hoche – 75008 Parigi	2009	Chairman and General Manager, Quinta Communications	None
Director	Gilberto BENETTON	EDIZIONE HOLDING S.p.A. – Villa Minelli – 31050 Ponzano Tv	2008	Chairman Edizione Holding Chairman Autogrill Deputy Chairman Telecom Italia Director Autostrade	None

Director	Antoine BERNHEIM	ASSICURAZIONI GENERALI S.p.A. c/o GENERALI FRANCE – 7, Bld. Haussmann – 75009 Parigi	2008	Chairman Assicurazioni Generali Deputy Chairman LVMH Deputy Chairman Bolloré Investissement Deputy Chairman of Supervisory Board Intesa San Paolo Director Christian Dior	None
Director	Vincent BOLLORE’	Bolloré Tour Bollorè – 31/32, Quai de Dion Bouton – 92800 Puteaux	2009	Chairman and General Manager Group Bolloré	None
Director	Carlo BUORA	TELECOM ITALIA S.p.A. – Piazza degli Affari n. 2 – 20123 Milano	2008	Managing Director Telecom Italia	None
Director	Giancarlo CERUTTI	OFFICINE MECCANICHE GIOVANNI CERUTTI S.p.A. – Via Adam n. 66 – 15033 Casale Monferrato	2008	Managing Director Officine Meccaniche Giovanni Cerutti	None
Director	Roberto COLANINNO	OMNIAHOLDING S.p.A. – Via Marangoni n. 1/e – 46100 Mantova	2007	Chairman Immsi Chairman Piaggio & C.	None
Director	Ennio DORIS	MEDIOLANUM S.p.A. – Via Francesco Sforza – Palazzo Meucci – 20080 Milano 3 – Basiglio	2009	Managing Director Mediolanum	None
Director	Gianluigi GABETTI*	IFI – Istituto Finanziario Industriale S.p.A. – Corso G. Matteotti n. 26 – 10121 Torino	2007	Chairman IFI Chairman and Managing Director IFIL	None
Director	Berardino LIBONATI	Studio Libonati Via Condotti n. 91 – 00187 Roma	2007	Attorney Chairman Banca di Roma Chairman Alitalia Director Pirelli & C.	None
Director	Jonella LIGRESTI	Gruppo Ligresti – Piazza della Repubblica n. 27 – 20124 Milano	2007	Chairman Fondiaria - SAI	None
Director	Fabrizio PALENZONA	UNICREDITO ITALIANO S.p.A. – Via San Protato n. 1/3 – 20121 Milano	2008	Deputy Chairman UniCredito Italiano Director Fondazione Cassa di Risparmio di Alessandria	None

Director	Carlo PESENTI	ITALCEMENTI S.p.A. – Via Camozzi n. 124 – 24121 Bergamo	2008	Director and General Manager Italmobiliare Managing Director Italcementi	None
Director	Alessandro PROFUMO	UNICREDITO ITALIANO S.p.A. – Via San Protaso n. 1 – 20121 Milano	2008	Managing Director UniCredito Italiano	None
Director	Eric STRUTZ	COMMERZBANK A.G. – Kaiserplatz – D-60261 FRANKFURT AM MAIN	2008	CFO of Commerzbank	None
General Manager	Alberto NAGEL	MEDIOBANCA S.p.A. – Piazzetta E. Cuccia n. 1 – 20121 Milano	Not applicable	General Manager of the Reporting Person	None

* See Item 2. Mr. Gabetti is currently banned by the Italian securities authority (Consob) from service as a Director. Mr. Gabetti has filed an appeal of the ban.

SCHEDULE A

Transactions by the Reporting Person in Endesa Shares During the Past Sixty Days*

Purchase/Sale	Date	Amount	Price

Purchase	12-1-2007	25,000	36.88
Sale	25-1-2007	12,500	39.03
Sale	26-1-2007	12,500	38.90
Purchase	5-2-2007	100,000	38.00
Purchase	7-2-2007	500,000	38.11
Purchase	9-2-2007	400,000	38.07
Purchase	14-2-2007	125,000	38.17
Sale	28-2-2007	650,000	38.33
Sale	1-3-2007	475,000	38.71
Purchase	1-3-2007	48,488,949	39.00
Purchase	2-3-2007	4,500,000	39.00
Purchase	12-3-2007	31,500,000	39.00

* To the Reporting Person’s best knowledge, none of the directors or executive officers identified in Annex A have effected transactions in the Endesa Shares in the past sixty days.

Exhibit No.	Description


Exhibit 1	Confirmation Agreement dated March 1, 2007, between Mediobanca – Banca di Credito Finanziario S.p.A. and Enel Energy Europe S.r.L. in respect of 48,488,949 ordinary shares of Endesa S.A.

Exhibit 2	Confirmation Agreement dated March 2, 2007, between Mediobanca – Banca di Credito Finanziario S.p.A. and Enel Energy Europe S.r.L. in respect of 4,500,000 ordinary shares of Endesa S.A.

Exhibit 3	Confirmation Agreement dated March 12, 2007, between Mediobanca – Banca di Credito Finanziario S.p.A. and Enel Energy Europe S.r.L. in respect of 31,500,000 ordinary shares of Endesa S.A.

Exhibit 4	Guarantee dated March 1, 2007, by ENEL S.p.A in favor of Mediobanca – Banca di Credito Finanziario S.p.A. in respect of liabilities arising from the Share Swap of 48,488,949 ordinary shares of Endesa S.A.

Exhibit 5	Guarantee dated March 2, 2007, by ENEL S.p.A. in favor of Mediobanca – Banca di Credito Finanziario S.p.A. in respect of liabilities arising from the Share Swap of 4,500,000 ordinary shares of Endesa S.A.

Exhibit 6	Guarantee dated March 12, 2007, by ENEL S.p.A. in favor of Mediobanca – Banca di Credito Finanziario S.p.A. in respect of liabilities arising from the Share Swap of 31,500,000 ordinary shares of Endesa S.A.

EX-1 2 exh1.htm EXHIBIT 1

Date:	1 March, 2007

To:	Enel Energy Europe Srl (“Counterparty”)

Fax No.:	+39 06 83 05 92 75

From:	Mediobanca – Banca di Credito Finanziario S.p.A. (“Mediobanca”)

Re:	Share Swap Transaction

This agreement (this “Confirmation”) confirms the terms of a transaction that Mediobanca and Counterparty have agreed to enter on the Trade Date specified below (the “Transaction”). This Confirmation constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.

The 2000 ISDA Definitions (the “Swap Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and with the Swap Definitions, the “Definitions”), each as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. If there is any inconsistency between the Swap Definitions and the Equity Definitions, the Equity Definitions govern. If there is any inconsistency between the Definitions and this Confirmation, this Confirmation governs.

This Confirmation, together with all other documents referring to the ISDA Form (each a “Confirmation”) confirming transactions (each a “Transaction”) entered into between us (notwithstanding anything to the contrary in a Confirmation), shall supplement, form a part of, and be subject to an agreement in the form of the 1992 ISDA Master Agreement (Multicurrency-Cross Border), in standard printed form, but with (i) EUR as Termination Currency, (ii) Loss as the payment measure on early termination under Section 6(e), (iii) the guarantee issued to Mediobanca by Enel SpA in respect of the obligations of Counterparty under the Transaction constitutes a Credit Support Document in relation to Counterparty, (iv) the event of Counterparty ceasing to be majority controlled (directly or indirectly) by Enel SpA being an Additional Termination Event with Counterparty as the sole Affected Party, and (v) English law as Governing Law, as if we had executed an agreement in such form (with any elections and modifications specified below) (the “ISDA Form”) on Trade Date of the Transaction to which this Confirmation relates. In the event of any inconsistency between the this Confirmation and any other part of the ISDA Form, this Confirmation will prevail for the purpose of this Transaction.

The terms of the Transaction are:

General Terms

Trade Date:

1 March, 2007, or if such day is not an Exchange Business Day, the first Exchange Business Day thereafter. (Time of execution available upon request.)

Effective Date:

The third Exchange Business Day after the Trade Date.

Termination Date:

The Cash Settlement Payment Date, if Cash Settlement applies, and the Settlement Date, if Physical Settlement applies.

The common stock of Endesa S.A. (the “Issuer”) (ISIN:ES0130670112)

Exchange(s):

Bolsa de Madrid

Related Exchange(s):

All Exchanges

Interim Payments

On the Effective Date, the Counterparty will pay Mediobanca an amount equal to 25% of the Equity Notional Amount

On the first Floating Amount Payment Date,

(i) if the Current Notional Amount is greater than the Equity Notional Amount, the Counterparty shall pay the difference between 25% of the Current Notional Amount and 25% of the Equity Notional Amount to Mediobanca; and

(ii) if the Current Notional Amount is less than the Equity Notional Amount, Mediobanca shall pay the difference between 25% of the Current Notional Amount and 25% of the Equity Notional Amount to the Counterparty

On the second Floating Amount Payment Date,

(i) if the Current Notional Amount with respect to the second Floating Amount Payment Date is greater than the Current Notional Amount with respect to the first Floating Amount Payment Date, the Counterparty shall pay to Mediobanca the difference between 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date and 25% of the Current Notional Amount with respect to the first Floating Amount Payment Date

(ii) if the Current Notional Amount with respect to the second Floating Amount Payment Date is less than the Current Notional Amount with respect to the first Floating Amount Payment Date, Mediobanca shall pay the difference between 25% of the Current Notional Amount with respect to the first Floating Amount Payment Date and 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date

On the third Floating Amount Payment Date,

(i) if the Counterparty has not elected to extend this Transaction in accordance with the Optional Maturity Extension provision below, Mediobanca shall pay to the Counterparty an amount equal to 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date; and

(ii) if the Counterparty has elected to extend this Transaction in accordance with the Optional Maturity Extension provision below,

(x) if 100% of the Current Notional Amount with respect to the third Floating Amount Payment Date is greater than 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date, then the Counterparty shall pay the difference between 100% of the Current Notional Amount with respect to the third Floating Amount Payment Date and 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date to Mediobanca; and

(y) if 100% of the Current Notional Amount with respect to the third Floating Amount is less than 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date, Mediobanca shall pay the difference between 100% of the Current Notional Amount with respect to the third Floating Amount Payment Date and 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date to the Counterparty

On each subsequent Floating Amount Payment Date,

(i) if the Current Notional Amount with respect to that Floating Amount Payment Date is greater than the Current Notional Amount with respect to the immediately preceding Floating Amount Payment Date, the Counterparty shall pay the difference to Mediobanca; and

(ii) if the Current Notional Amount with respect to that Floating Amount Payment Date is less than the Current Notional Amount with respect to the immediately preceding Floating Amount Payment Date, Mediobanca shall pay the difference to the Counterparty

On the Termination Date, Mediobanca shall pay to the Counterparty an amount equal to the sum of (a) all the amounts paid to Mediobanca by the Counterparty pursuant to this Interim Payments section on all previous Floating Amount Payment Date section less (b) all the amounts paid to the Counterparty by Mediobanca pursuant to this Interim Payments provision section on all previous Floating Amount Payment Date

Current Notional Amount:

Means, with respect to each Floating Amount Payment Date, the product of (i) the closing price per Share as of the last Exchange Business Day to occur during the period up to and including that Floating Amount Payment Date and (ii) the Number of Shares

Equity Amounts

Equity Amount Payer:

Mediobanca

Number of Shares:

The number of Shares in relation to which Mediobanca advises Counterparty on the Trade Date that it has been able to hedge its exposure under this Transaction, is equal to 48,488,949

Equity Notional Amount:

An amount in EUR equal to the product of (i) the Number of Shares and (ii) the Initial Price

Equity Notional Reset:

Not applicable

Type of Return:

Total Return

Multiplier:

One

Initial Price:

The execution price per Share at which Mediobanca actually established its Hedge Positions for this Transaction is equal to EUR 39.00

Dividends

Dividend Period:

The period from but excluding the Trade Date to and including the Valuation Date

Dividend Amount:

With respect to each payment of cash dividends by the Issuer for which the ex-dividend date falls during the Dividend Period, the amount that would be payable to Mediobanca, net of any applicable taxes, if Mediobanca were a holder of a number of Shares equal to the Number of Shares

Re-investment of Dividends:

Inapplicable

Dividend Payment Dates:

With respect to each Dividend Amount, the date on which holders of the Shares receive the corresponding dividend from the Issuer

Dividends:

For the avoidance of doubt, subject to the provisions of this Transaction on Potential Adjustment Events, the parties acknowledge that “Dividends” includes dividends, extraordinary dividends and free cash distributions (non-cash distributions being dealt with under Potential Adjustment Events provisions, whereby the Calculation Agent is required to act in good faith and in a commercially reasonable manner to reflect, among other things, the economics of any non-cash distributions).

Floating Amount 1

Floating Amount Payer:

Counterparty

Notional Amount:

Equity Notional Amount

Floating Amount Payment Dates:

The 1^st day of each calendar month from, but excluding the Trade Date, to, and including, the Termination Date.

Floating Rate Option:

EUR-EURIBOR-Telerate

Designated Maturity:

1 Month

Spread:

0.40 %

Floating Rate Day Count Fraction:

Actual/360

Reset Dates:

The first day of each Calculation Period

Floating Amount 2

Floating Amount Payer:

Mediobanca

Notional Amount:

For the first Calculation Period, 25% of the Equity Notional Amount, for each of the second and third Calculation Periods, 25% of the Current Notional Amount for the Floating Amount Payment Date on which such second or third Calculation Period (as the case may be) begins, and for each subsequent Calculation Period, 100% of the Current Notional Amount for the Floating Amount Payment Date on which such Calculation Period begins.

Floating Amount Payment Dates:

As for Floating Amount 1

Floating Rate Option:

EUR-EURIBOR-Telerate

Designated Maturity:

1 Month

Spread:

Zero

Floating Rate Day Count Fraction:

Actual/360

Reset Dates:

The first day of each Calculation Period

Settlement Terms

Cash Settlement:

Applicable, subject to the “Conditional Right to Elect Physical Settlement” provisions below.

Cash Settlement Payment Date:

Three Currency Business Days after the Valuation Date

Final Price:

The arithmetic mean of the Relevant Prices for the Averaging Dates.

Relevant Price:

For each Averaging Date, the Exchange-published daily volume-weighted average price per Share on that Averaging Date.

Valuation Time:

Scheduled Closing Time of the Exchange

Valuation Date:

1 June, 2007, subject to the Optional Maturity Extension and Optional Early Termination provisions below.

Averaging Dates:

The Valuation Date and each of the 5 Exchange Business Days immediately prior to the Valuation Date

Averaging Date Disruption:

Modified Postponement

Conditional Right to Elect Physical Settlement

Counterparty may elect Physical Settlement in relation to this Transaction, but only if:

(1)

Counterparty gives Mediobanca notice of such election at least three Exchange Business Days’ prior to the first Averaging Date;

(2)

no Event of Default has occurred and is continuing with respect to Counterparty at the time such notice is given; and

(3)

Physical Settlement of this Transaction would be in compliance with all applicable laws and regulations (which includes, without limitation, any requirement there might be in Spain, or in Spanish law, for approval from the Spanish Comisión Nacional de Energía (“CNE”), prior approval of the CNE), and Counterparty confirms the same to Mediobanca.

Where Physical Settlement has been elected in accordance with the foregoing, Cash Settlement shall no longer be applicable, but instead Physical Settlement shall be applicable, and the Settlement Date in relation to such Physical Settlement shall be the third Clearance System Business Day after the Valuation Date.

Share Adjustments

Method of Adjustment:

Calculation Agent Adjustment

Extraordinary Events

Notwithstanding anything below, Sections 12.2 and 12.3 of the Equity Definitions do not apply to any Merger Event or Tender Offer the Announcement Date for which is before the Trade Date, but, for the avoidance of doubt, such Sections do apply to any other Merger Event or Tender Offer.

Consequences of Merger Events

Share-for-Share:

Modified Calculation Agent Adjustment

Share-for-Other:

Modified Calculation Agent Adjustment

Share-for-Combined:

Modified Calculation Agent Adjustment

Tender Offer:

Applicable (subject to the foregoing)

Consequences of Tender Offers:

Share-for-Share:

Modified Calculation Agent Adjustment

Share-for-Other:

Modified Calculation Agent Adjustment

Share-for-Combined:

Modified Calculation Agent Adjustment

Determining Party:

Mediobanca

Composition of

Combined Consideration:

Inapplicable

Nationalisation or Insolvency:

Negotiated Close-Out

Delisting:

Cancellation and Payment

Additional Disruption Events

Failure to Deliver:

Inapplicable

Change in Law:

Applicable

Insolvency Filing:

Inapplicable

Hedging Disruption:

Applicable

Increased Cost of Hedging:

Inapplicable

Increased Cost of Stock Borrow:

Inapplicable

Hedging Party:

Mediobanca

Determining Party:

Mediobanca

Optional Early Termination

The Counterparty may terminate this Transaction as at any Exchange Business Day (prior to the Valuation Date) designated by the Counterparty (the day so designated, the “Optional Termination Date”) by giving not less than 7 Exchange Business Days’ notice to Mediobanca, in which case, and notwithstanding any other provision of this Confirmation, the Valuation Date is brought forward to the Optional Termination Date, and :

(1) If Cash Settlement applies, then, in addition to any Equity Amount, Floating Amounts or Dividend Amount payable,

(i) the Counterparty must pay to Mediobanca an amount, determined by the Calculation Agent, equal to any loss to Mediobanca; and

(ii) Mediobanca must pay to the Counterparty an amount, determined by the Calculation Agent, equal to any gain to Mediobanca

in either case arising from movements in interest rates between the Optional Termination Date and the Reset Date falling immediately prior to the Optional Termination Date, and

(2) if Physical Settlement applies, then, in addition to any Floating Amounts, Equity Notional Amount and any Dividend Amounts payable, and the obligation to deliver the Number of Shares to be Delivered,

(i) the Counterparty must pay to Mediobanca an amount, determined by the Calculation Agent, equal to any loss to Mediobanca; and

(ii) Mediobanca must pay to the Counterparty an amount, determined by the Calculation Agent, equal to any gain to Mediobanca,

in either case arising from movements in interest rates between the Optional Termination Date and the Reset Date falling immediately prior to the Optional Termination Date.

Optional Maturity Extension

At any time before the day that is two Exchange Business Days before what would otherwise be the first Averaging Date, Counterparty may by notice to Mediobanca elect to extend the maturity of this Transaction by three months, so that the Valuation Date is, subject to the Following Business Day Convention, deferred to the 1^st day of the calendar month that is three calendar months after what would otherwise have been the Valuation Date, provided however that the Valuation Date cannot be deferred beyond 1 March, 2010

Relationship Between Parties

Each party will be deemed to represent to the other party on the date on which it enters into this Transaction that (in the absence of any written agreement between the parties which expressly imposes affirmative obligations to the contrary for this Transaction):-

(A) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into this Transaction, it being understood that information and explanations related to the terms and conditions of this Transaction will not be considered investment advice or a recommendation to enter into this Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of this Transaction.

(B) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of this Transaction. It is also capable of assuming, and assumes, the risks of this Transaction.

(C) Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of this Transaction.

Non-Reliance:

Applicable

Agreements and Acknowledgements

Regarding Hedging Activities:

Applicable

Additional Acknowledgements:

Applicable

Calculation Agent:

Mediobanca

Representation and Warranties by Counterparty

Counterparty represents, warrants and agrees to and with Mediobanca that:

(1)

it is not aware of any material change or any development involving a material change in the condition (financial or otherwise) of the Issuer and its subsidiaries or any other material information in the context of the Transaction, including any unpublished price-sensitive information with respect to the Shares;

(2)	all internal consents and authorisations required by it in connection with this Transaction have been obtained and all policies and procedures complied with;

(3)

it understands that, subject to the “Conditional Right to Elect Physical Settlement” provisions above, this Transaction is a cash settled instrument, and that it does not, by virtue of this Transaction alone obtain any beneficial or other ownership rights as to Shares (including, without limitation, as to voting and disposition, so that, for the avoidance of doubt, if, and to the extent that, Mediobanca holds any Shares as a Hedge Position in relation this Transaction, Mediobanca is not obliged to exercise voting rights it may have by reason of such shareholding in accordance with the wishes of Counterparty);

(4)	it has not made, and will not make, any representations or warranties to other parties (including, without limitation, the Issuer and the Issuer’s representatives or management) that it has, by virtue of this Transaction, any ownership or voting rights of a type contemplated by (3) above;

(5)	it intends to, and will, make any and all required disclosures regarding any exposure it obtains to Shares under this Transaction;

(6)

Without, for avoidance of doubt, prejudice to any obligation Mediobanca in relation to Physical Settlement, Mediobanca has no obligation to establish or maintain any particular type of Hedge Positions in relation to this Transaction, including, without limitation, any purchase or ownership of Shares;

(7)	it has not reached any decision to launch a takeover bid for the Issuer; and

(8)	it is not acting in concert with any other shareholder of the Issuer in relation to the Shares or the Issuer, nor has it entered into any agreement to do so.

Account Details

Payments to Mediobanca:

Intesa Sanpaolo (Ex Banca Intesa)

ABI 03069

CAB 12711

C/C 103596/41

BBAN: T0306912711000010359641

IBAN: IT74T0306912711000010359641

(SWIFT CODE: BAMEITMMXXX)

Payments to Counterparty:

To be provided

Please indicate your agreement to the foregoing by signing a copy of this Confirmation and returning it to us by fax to +39 028829589 or in pdf to the following email address francesco.carloni@mediobanca.it

Signed on behalf of

MEDIOBANCA – BANCA DI CREDITO FINANZIARIO S.P.A.

By: ______________________

By:____________________

Name:

Title:

Agreed and accepted as of the first date written above

ENEL ENERGY EUROPE SRL

By: ______________________

Name:

Title:

This information is communicated by Mediobanca. Mediobanca may from time to time, as principal or agent, have positions in, or may buy or sell, or make a market in any securities, currencies, financial instruments or other assets underlying the transaction to which the termsheet relates. Mediobanca may provide investment banking and other services to and/or have officers who serve as directors of the companies referred to in this term sheet. Mediobanca may pay or receive brokerage or retrocession fees in connection with this transaction. Mediobanca ‘s hedging activities related to this transaction may have an impact on the price of the underlying asset and may affect the likelihood that any relevant barrier is crossed.

Structured transactions are complex and may involve a high risk of loss. Prior to entering into a transaction you should consult with your own legal, regulatory, tax, financial and accounting advisors to the extent you consider it necessary, and make your own investment, hedging and trading decisions (including decisions regarding the suitability of this transaction) based upon your own judgement and advice from those advisers you consider necessary. Save as otherwise expressly agreed, Mediobanca is not acting as your financial adviser or fiduciary in any transaction.

This document is for information purposes only and should not be construed as an offer, recommendation or solicitation to conclude a transaction and should not be treated as giving investment advice. The terms of an OTC derivative transaction will be subject to the detailed provisions of the final confirmation.

Mediobanca makes no representation or warranty relating to any information herein which is derived from independent sources. This document shall not be copied or reproduced without Mmediobanca’s prior written permission.

EX-2 3 exh2.htm EXHIBIT 2

Date:	2 March, 2007

To:	Enel Energy Europe Srl (“Counterparty”)

Fax No.:	+39 06 83 05 92 75

From:	Mediobanca – Banca di Credito Finanziario S.p.A. (“Mediobanca”)

Re:	Share Swap Transaction

The terms of the Transaction are:

General Terms

Trade Date:

2 March, 2007, or if such day is not an Exchange Business Day, the first Exchange Business Day thereafter. (Time of execution available upon request.)

Effective Date:

The third Exchange Business Day after the Trade Date.

Termination Date:

The Cash Settlement Payment Date, if Cash Settlement applies, and the Settlement Date, if Physical Settlement applies.

The common stock of Endesa S.A. (the “Issuer”) (ISIN:ES0130670112)

Exchange(s):

Bolsa de Madrid

Related Exchange(s):

All Exchanges

Interim Payments

On the Effective Date, the Counterparty will pay Mediobanca an amount equal to 25% of the Equity Notional Amount

On the first Floating Amount Payment Date,

On the second Floating Amount Payment Date,

On the third Floating Amount Payment Date,

(i)

if the Counterparty has not elected to extend this Transaction in accordance with the Optional Maturity Extension provision below, Mediobanca shall pay to the Counterparty an amount equal to 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date; and

(ii)

if the Counterparty has elected to extend this Transaction in accordance with the Optional Maturity Extension provision below,

On each subsequent Floating Amount Payment Date,

Current Notional Amount:

Equity Amounts

Equity Amount Payer:

Mediobanca

Number of Shares:

The number of Shares in relation to which Mediobanca advises Counterparty on the Trade Date that it has been able to hedge its exposure under this Transaction, is equal to 4,500,000

Equity Notional Amount:

An amount in EUR equal to the product of (i) the Number of Shares and (ii) the Initial Price

Equity Notional Reset:

Not applicable

Type of Return:

Total Return

Multiplier:

One

Initial Price:

The execution price per Share at which Mediobanca actually established its Hedge Positions for this Transaction is equal to EUR 39.00

Dividends

Dividend Period:

The period from but excluding the Trade Date to and including the Valuation Date

Dividend Amount:

Re-investment of Dividends:

Inapplicable

Dividend Payment Dates:

With respect to each Dividend Amount, the date on which holders of the Shares receive the corresponding dividend from the Issuer

Dividends:

Floating Amount 1

Floating Amount Payer:

Counterparty

Notional Amount:

Equity Notional Amount

Floating Amount Payment Dates:

The 1^st day of each calendar month from, but excluding the Trade Date, to, and including, the Termination Date.

Floating Rate Option:

EUR-EURIBOR-Telerate

Designated Maturity:

1 Month

Spread:

0.40 %

Floating Rate Day Count Fraction:

Actual/360

Reset Dates:

The first day of each Calculation Period

Floating Amount 2

Floating Amount Payer:

Mediobanca

Notional Amount:

Floating Amount Payment Dates:

As for Floating Amount 1

Floating Rate Option:

EUR-EURIBOR-Telerate

Designated Maturity:

1 Month

Spread:

Zero

Floating Rate Day Count Fraction:

Actual/360

Reset Dates:

The first day of each Calculation Period

Settlement Terms

Cash Settlement:

Applicable, subject to the “Conditional Right to Elect Physical Settlement” provisions below.

Cash Settlement Payment Date:

Three Currency Business Days after the Valuation Date

Final Price:

The arithmetic mean of the Relevant Prices for the Averaging Dates.

Relevant Price:

For each Averaging Date, the Exchange-published daily volume-weighted average price per Share on that Averaging Date.

Valuation Time:

Scheduled Closing Time of the Exchange

Valuation Date:

1 June, 2007, subject to the Optional Maturity Extension and Optional Early Termination provisions below.

Averaging Dates:

The Valuation Date and each of the 5 Exchange Business Days immediately prior to the Valuation Date

Averaging Date Disruption:

Modified Postponement

Conditional Right to Elect Physical Settlement

Counterparty may elect Physical Settlement in relation to this Transaction, but only if:

(1)

Counterparty gives Mediobanca notice of such election at least three Exchange Business Days’ prior to the first Averaging Date;

(2)

no Event of Default has occurred and is continuing with respect to Counterparty at the time such notice is given; and

(3)

Share Adjustments

Method of Adjustment:

Calculation Agent Adjustment

Extraordinary Events

Consequences of Merger Events

Share-for-Share:

Modified Calculation Agent Adjustment

Share-for-Other:

Modified Calculation Agent Adjustment

Share-for-Combined:

Modified Calculation Agent Adjustment

Tender Offer:

Applicable (subject to the foregoing)

Consequences of Tender Offers:

Share-for-Share:

Modified Calculation Agent Adjustment

Share-for-Other:

Modified Calculation Agent Adjustment

Share-for-Combined:

Modified Calculation Agent Adjustment

Determining Party:

Mediobanca

Composition of

Combined Consideration:

Inapplicable

Nationalisation or Insolvency:

Negotiated Close-Out

Delisting:

Cancellation and Payment

Additional Disruption Events

Failure to Deliver:

Inapplicable

Change in Law:

Applicable

Insolvency Filing:

Inapplicable

Hedging Disruption:

Applicable

Increased Cost of Hedging:

Inapplicable

Increased Cost of Stock Borrow:

Inapplicable

Hedging Party:

Mediobanca

Determining Party:

Mediobanca

Optional Early Termination

(1) If Cash Settlement applies, then, in addition to any Equity Amount, Floating Amounts or Dividend Amount payable,

(i) the Counterparty must pay to Mediobanca an amount, determined by the Calculation Agent, equal to any loss to Mediobanca; and

(ii) Mediobanca must pay to the Counterparty an amount, determined by the Calculation Agent, equal to any gain to Mediobanca

in either case arising from movements in interest rates between the Optional Termination Date and the Reset Date falling immediately prior to the Optional Termination Date, and

(2) If Physical Settlement applies, then, in addition to any Floating Amounts, Equity Notional Amount and any Dividend Amounts payable, and the obligation to deliver the Number of Shares to be Delivered,

(i) the Counterparty must pay to Mediobanca an amount, determined by the Calculation Agent, equal to any loss to Mediobanca; and

(ii) Mediobanca must pay to the Counterparty an amount, determined by the Calculation Agent, equal to any gain to Mediobanca,

in either case arising from movements in interest rates between the Optional Termination Date and the Reset Date falling immediately prior to the Optional Termination Date.

Optional Maturity Extension

Relationship Between Parties

(C) Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of this Transaction.

Non-Reliance:

Applicable

Agreements and Acknowledgements

Regarding Hedging Activities:

Applicable

Additional Acknowledgements:

Applicable

Calculation Agent:

Mediobanca

Representation and Warranties by Counterparty

Counterparty represents, warrants and agrees to and with Mediobanca that:

(1)

(2)	all internal consents and authorisations required by it in connection with this Transaction have been obtained and all policies and procedures complied with;

(3)

(4)	it has not made, and will not make, any representations or warranties to other parties (including, without limitation, the Issuer and the Issuer’s representatives or management) that it has, by virtue of this Transaction, any ownership or voting rights of a type contemplated by (3) above;

(5)	it intends to, and will, make any and all required disclosures regarding any exposure it obtains to Shares under this Transaction;

(6)

(7)	it has not reached any decision to launch a takeover bid for the Issuer; and

(8)	it is not acting in concert with any other shareholder of the Issuer in relation to the Shares or the Issuer, nor has it entered into any agreement to do so.

Account Details

Payments to Mediobanca:

Intesa Sanpaolo (Ex Banca Intesa)

ABI 03069

CAB 12711

C/C 103596/41

BBAN: T0306912711000010359641

IBAN: IT74T0306912711000010359641

(SWIFT CODE: BAMEITMMXXX)

Payments to Counterparty:

To be provided

Signed on behalf of

MEDIOBANCA – BANCA DI CREDITO FINANZIARIO S.P.A.

By: ______________________

By:____________________

Name:

Title:

Agreed and accepted as of the first date written above

ENEL ENERGY EUROPE SRL

By: ______________________

Name:

Title:

EX-3 4 exhibit3.htm EXHIBIT 3

Date:	12 March, 2007

To:	Enel Energy Europe Srl (“Counterparty”)

Fax No.:	+39 06 83 05 92 75

From:	Mediobanca – Banca di Credito Finanziario S.p.A. (“Mediobanca”)

Re:	Share Swap Transaction

The terms of the Transaction are:

General Terms

Trade Date:

12 March, 2007, or if such day is not an Exchange Business Day, the first Exchange Business Day thereafter. (Time of execution available upon request.)

Effective Date:

The third Exchange Business Day after the Trade Date.

Termination Date:

The Cash Settlement Payment Date, if Cash Settlement applies, and the Settlement Date, if Physical Settlement applies.

The common stock of Endesa S.A. (the “Issuer”) (ISIN:ES0130670112)

Exchange(s):

Bolsa de Madrid

Related Exchange(s):

All Exchanges

Interim Payments

On the Effective Date, the Counterparty will pay Mediobanca an amount equal to 25% of the Equity Notional Amount

On the first Floating Amount Payment Date,

On the second Floating Amount Payment Date,

On the third Floating Amount Payment Date,

(ii) if the Counterparty has elected to extend this Transaction in accordance with the Optional Maturity Extension provision below,

On each subsequent Floating Amount Payment Date,

Current Notional Amount:

Equity Amounts

Equity Amount Payer:

Mediobanca

Number of Shares:

The number of Shares in relation to which Mediobanca advises Counterparty on the Trade Date that it has been able to hedge its exposure under this Transaction, is equal to 31,500,000

Equity Notional Amount:

An amount in EUR equal to the product of (i) the Number of Shares and (ii) the Initial Price

Equity Notional Reset:

Not applicable

Type of Return:

Total Return

Multiplier:

One

Initial Price:

The execution price per Share at which Mediobanca actually established its Hedge Positions for this Transaction is equal to EUR 39.00

Dividends

Dividend Period:

The period from but excluding the Trade Date to and including the Valuation Date

Dividend Amount:

Re-investment of Dividends:

Inapplicable

Dividend Payment Dates:

With respect to each Dividend Amount, the date on which holders of the Shares receive the corresponding dividend from the Issuer

Dividends:

Floating Amount 1

Floating Amount Payer:

Counterparty

Notional Amount:

Equity Notional Amount

Floating Amount Payment Dates:

The 15^th day of each calendar month from, but excluding the Trade Date, to, and including, the Termination Date.

Floating Rate Option:

EUR-EURIBOR-Telerate

Designated Maturity:

1 Month

Spread:

0.40 %

Floating Rate Day Count Fraction:

Actual/360

Reset Dates:

The first day of each Calculation Period

Floating Amount 2

Floating Amount Payer:

Mediobanca

Notional Amount:

Floating Amount Payment Dates:

As for Floating Amount 1

Floating Rate Option:

EUR-EURIBOR-Telerate

Designated Maturity:

1 Month

Spread:

Zero

Floating Rate Day Count Fraction:

Actual/360

Reset Dates:

The first day of each Calculation Period

Settlement Terms

Cash Settlement:

Applicable, subject to the “Conditional Right to Elect Physical Settlement” provisions below.

Cash Settlement Payment Date:

Three Currency Business Days after the Valuation Date

Final Price:

The arithmetic mean of the Relevant Prices for the Averaging Dates.

Relevant Price:

For each Averaging Date, the Exchange-published daily volume-weighted average price per Share on that Averaging Date.

Valuation Time:

Scheduled Closing Time of the Exchange

Valuation Date:

12 June, 2007, subject to the Optional Maturity Extension and Optional Early Termination provisions below.

Averaging Dates:

The Valuation Date and each of the 5 Exchange Business Days immediately prior to the Valuation Date

Averaging Date Disruption:

Modified Postponement

Conditional Right to Elect Physical Settlement

Counterparty may elect Physical Settlement in relation to this Transaction, but only if:

(1)

Counterparty gives Mediobanca notice of such election at least three Exchange Business Days’ prior to the first Averaging Date;

(2)

no Event of Default has occurred and is continuing with respect to Counterparty at the time such notice is given; and

(3) Physical Settlement of this Transaction would be in compliance with all applicable laws and regulations (which includes, without limitation, any requirement there might be in Spain, or in Spanish law, for approval from the Spanish Comisión Nacional de Energía (“CNE”), prior approval of the CNE), and Counterparty confirms the same to Mediobanca.

Share Adjustments

Method of Adjustment:

Calculation Agent Adjustment

Extraordinary Events

Consequences of Merger Events

Share-for-Share:

Modified Calculation Agent Adjustment

Share-for-Other:

Modified Calculation Agent Adjustment

Share-for-Combined:

Modified Calculation Agent Adjustment

Tender Offer:

Applicable (subject to the foregoing)

Consequences of Tender Offers:

Share-for-Share:

Modified Calculation Agent Adjustment

Share-for-Other:

Modified Calculation Agent Adjustment

Share-for-Combined:

Modified Calculation Agent Adjustment

Determining Party:

Mediobanca

Composition of

Combined Consideration:

Inapplicable

Nationalisation or Insolvency:

Negotiated Close-Out

Delisting:

Cancellation and Payment

Additional Disruption Events

Failure to Deliver:

Inapplicable

Change in Law:

Applicable

Insolvency Filing:

Inapplicable

Hedging Disruption:

Applicable

Increased Cost of Hedging:

Inapplicable

Increased Cost of Stock Borrow:

Inapplicable

Hedging Party:

Mediobanca

Determining Party:

Mediobanca

Optional Early Termination

(1) If Cash Settlement applies, then, in addition to any Equity Amount, Floating Amounts or Dividend Amount payable,

(i) the Counterparty must pay to Mediobanca an amount, determined by the Calculation Agent, equal to any loss to Mediobanca; and

(ii) Mediobanca must pay to the Counterparty an amount, determined by the Calculation Agent, equal to any gain to Mediobanca

in either case arising from movements in interest rates between the Optional Termination Date and the Reset Date falling immediately prior to the Optional Termination Date, and

(i) the Counterparty must pay to Mediobanca an amount, determined by the Calculation Agent, equal to any loss to Mediobanca; and

(ii) Mediobanca must pay to the Counterparty an amount, determined by the Calculation Agent, equal to any gain to Mediobanca,

in either case arising from movements in interest rates between the Optional Termination Date and the Reset Date falling immediately prior to the Optional Termination Date.

Optional Maturity Extension

At any time before the day that is two Exchange Business Days before what would otherwise be the first Averaging Date, Counterparty may by notice to Mediobanca elect to extend the maturity of this Transaction by three months, so that the Valuation Date is, subject to the Following Business Day Convention, deferred to the 12^th day of the calendar month that is three calendar months after what would otherwise have been the Valuation Date, provided however that the Valuation Date cannot be deferred beyond 1 March, 2010

Relationship Between Parties

(C) Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of this Transaction.

Non-Reliance:

Applicable

Agreements and Acknowledgements

Regarding Hedging Activities:

Applicable

Additional Acknowledgements:

Applicable

Calculation Agent:

Mediobanca

Representation and Warranties by Counterparty

Counterparty represents, warrants and agrees to and with Mediobanca that:

(1)

(2)	all internal consents and authorisations required by it in connection with this Transaction have been obtained and all policies and procedures complied with;

(3)

(4)	it has not made, and will not make, any representations or warranties to other parties (including, without limitation, the Issuer and the Issuer’s representatives or management) that it has, by virtue of this Transaction, any ownership or voting rights of a type contemplated by (3) above;

(5)	it intends to, and will, make any and all required disclosures regarding any exposure it obtains to Shares under this Transaction;

(6)

(7)	it has not reached any decision to launch a takeover bid for the Issuer; and

(8)	it is not acting in concert with any other shareholder of the Issuer in relation to the Shares or the Issuer, nor has it entered into any agreement to do so.

Account Details

Payments to Mediobanca:

Intesa Sanpaolo (Ex Banca Intesa)

ABI 03069

CAB 12711

C/C 103596/41

BBAN: T0306912711000010359641

IBAN: IT74T0306912711000010359641

(SWIFT CODE: BAMEITMMXXX)

Payments to Counterparty:

To be provided

Signed on behalf of

MEDIOBANCA – BANCA DI CREDITO FINANZIARIO S.P.A.

By: ______________________

By:____________________

Name:

Title:

Agreed and accepted as of the first date written above

ENEL ENERGY EUROPE SRL

By: ______________________

Name:

Title:

EX-4 5 exh4.htm EXHIBIT 4

Enel SpA

as Guarantor

in favour of

MEDIOBANCA – BANCA DI CREDITO FINANZIARIO S.P.A.

__________________________________________

Guarantee of

Liabilities arising from the Transaction

____________________________________________

THIS GUARANTEE is made the 1^st day of March, 2007 between Enel SpA (the “Guarantor”) and Mediobanca – Banca di Credito Finanziario S.p.A. (“MEDIOBANCA”)

WHEREAS

(A)	On 1March 2007 a total return equity swap has been entered into between Mediobanca and Enel Energy Europe Srl (the “Counterparty”) on 48,488,949 common stock shares of Endesa S.A. (the “Transaction” ) evidenced by an ISDA Confirmation.

(B)	the Guarantor has agreed pursuant to the terms and conditions of this agreement (the “Guarantee”) to guarantee all present and future obligations of the Counterparty to MEDIOBANCA under the Transaction..

1.		Interpretation

	All terms used and not otherwise defined in this Guarantee shall have the meanings given to those terms in the Transaction

2.		Guarantee

2.1 For good and sufficient consideration the Guarantor irrevocably and unconditionally guarantees to MEDIOBANCA the due and punctual observance and performance by the Counterparty of all its obligations under the Transaction and agrees to pay to MEDIOBANCA from time to time on demand any and every sum or sums of money from time to time due and payable (but unpaid) by the Counterparty under or pursuant to the Transaction or on account of any breach thereof and agrees as a primary obligation to indemnify MEDIOBANCA from time to time on demand from and against any loss incurred by MEDIOBANCA as a result of any of the obligations of the Counterparty under the Transaction being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to MEDIOBANCA, the amount of such loss being the amount which MEDIOBANCA would otherwise have been entitled to recover from the Counterparty.

2.2 Payment to MEDIOBANCA shall be made in the currency in which such amounts are payable by the Counterparty and in immediately available freely transferable, cleared funds to such account with such bank as MEDIOBANCA may specify, together with interest on such amounts at the rate per annum that would be payable by the Counterparty under Section 2(e) of the 1992 ISDA Master Agreement in respect of such amount from the date when the amounts became due from the Guarantor until payment in full of such amounts.

-2-

2.3 All moneys received, recovered or realised by MEDIOBANCA by virtue of Clause 2 may, in MEDIOBANCA’s discretion, be credited to a suspense or impersonal account and may be held in such account for so long as MEDIOBANCA thinks fit pending the application from time to time (as MEDIOBANCA may think fit) of such moneys in or towards the payment and discharge of any amounts owing by the Guarantor to MEDIOBANCA under this Guarantee.

3.		Preservation of Rights

3.1 The obligations of the Guarantor herein contained shall be in addition to and independent of every other security which MEDIOBANCA may at any time hold in respect of any of the Counterparty’s obligations under the Transaction.

3.2 Neither the obligations of the Guarantor herein contained nor the rights, powers and remedies conferred in respect of the Guarantor upon MEDIOBANCA by the Transaction or by law shall be discharged, impaired or otherwise affected by:

	(i)		the winding-up, dissolution, administration or reorganisation of the Counterparty or any change in its status, function, control or ownership;

	(ii)		any of the obligations of the Counterparty under the Transaction or under any other security relating to the Transaction being or becoming illegal, invalid, unenforceable or ineffective in any respect;

	(iii)		time or other indulgence being granted or agreed to be granted to the Counterparty in respect of its obligations under the Transaction or under any such other security;

	(iv)		any amendment to, or any variation, waiver or release of any obligation of the Counterparty under the Transaction or under any such other security;

	(v)		any failure to take, or fully to take, any security contemplated by the Master Agreement or otherwise agreed to be taken in respect of the Counterparty’s obligations under the Transaction;

	(vi)		any failure to realise or fully to realise the value of, or any release, discharge, exchange or substitution of, any such security taken in respect of the Counterparty’s obligations under the Transaction; or

	(vii)		any other act, event or omission which, but for this Clause 3.2, might operate to discharge, impair or otherwise affect any of the obligations of the Guarantor herein contained or any of the rights, powers or remedies conferred upon MEDIOBANCA by the Transaction or by law.

-3-

3.3 Any settlement or discharge between the Guarantor and MEDIOBANCA shall be conditional upon no security or payment to MEDIOBANCA by the Counterparty or the Guarantor being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of general application for the time being in force and, if any such security or payment is so avoided or reduced, MEDIOBANCA shall be entitled to recover the value or amount of such security or payment from the Guarantor subsequently as if such discharge had not occurred.

3.4 MEDIOBANCA shall not be obliged before exercising any of the rights, powers or remedies conferred upon it in respect of the Guarantor hereby or by law:

	(i)		to make any demand of the Counterparty;

	(ii)		to take any action or obtain judgment in any court against the Counterparty;

	(iii)		to make or file any claim or proof in a winding-up or dissolution of the Counterparty; or

	(iv)		to enforce or seek to enforce any security taken in respect of any of the obligations of the Counterparty under the Transaction.

3.5 The Guarantor agrees that, so long as any amounts are or may be owed by the Counterparty under the Transaction and the Transaction has not been terminated, any rights which the Guarantor may at any time have by reason of performance by it of its obligations hereunder:

	(i)		to be indemnified by the Counterparty or to exercise any right of set-off against the Counterparty, or to exercise any other right of contribution or exercise any right of security or any other legal remedies; and/or

	(ii)		to claim any contribution from or exercise any right of set-off against any other guarantor of the Counterparty’s obligations under the Transaction; and/or

	(iii)		to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of MEDIOBANCA under the Transaction or of any other security taken pursuant to, or in connection with, the Transaction by MEDIOBANCA

			shall be exercised by the Guarantor in such manner and upon such terms as MEDIOBANCA may require and the Guarantor further agrees to hold any moneys at any time received by it as a result of the exercise of any such rights for and on behalf of, and to the order of, MEDIOBANCA for application in or towards payment of any sums at any time owed by the Counterparty under the Transaction.

4.		Representations and Warranties

-4-


4.1 The Guarantor represents that:

	(i)		it is duly incorporated in Italy and has power to enter into and perform this Guarantee and has taken all necessary corporate action to authorise the execution, delivery and performance of this Guarantee;

	(ii)		the execution, delivery and performance of this Guarantee will not contravene any law or regulation to which the Guarantor is subject or any provision of the Guarantor’s memorandum and articles of association and all governmental or other consents requisite for such execution, delivery and performance are in full force and effect;

	(iii)		no obligation of the Guarantor is secured by, and the execution, delivery and performance of this Guarantee will not result in the existence of or oblige the Guarantor to create, any mortgage, charge, pledge, lien or other encumbrance over any present or future revenues or assets of the Guarantor;

	(iv)		the execution, delivery and performance of this Guarantee will not cause the Guarantor to be in breach of or default under any agreement binding on it or any of its assets and no material litigation or administrative proceeding before, by or of any court or governmental authority is pending or (so far as the Guarantor knows) threatened against it or any of its assets.

	(v)		this Guarantee constitutes the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with its terms.

4.2 The above representations and warranties shall remain true and correct at all times until such time as there are no amounts owed or which may be owed by the Counterparty under the Transaction and the Transaction has been determined.

5.		Currency of Account

Moneys received or recovered by MEDIOBANCA from the Guarantor in a currency other than that in which the said sums are due and payable under or pursuant to the Transaction shall be converted into the latter currency at the rate at which MEDIOBANCA would have sold the latter currency for the former at the opening of business on the latest day before MEDIOBANCA’s receipt or recovery on which MEDIOBANCA quoted generally a rate of exchange for such a sale. The Guarantor shall indemnify MEDIOBANCA against losses (including losses flowing from fluctuations in rates of exchange) arising as a result of payment in a currency other than that in which the said sums are due and payable whether under the Transaction or this Guarantee or as a result of any order, proof or claim being expressed or payable in a different currency.

6.		Continuing Security

-5-


The obligations of the Guarantor herein contained shall constitute and be continuing obligations notwithstanding any settlement of account or other matter or thing whatsoever, and in particular but without limitation, shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the obligations of the Counterparty under the Transaction and shall continue in full force and effect until final payment in full of all amounts owing by the Counterparty thereunder and total satisfaction of all the Counterparty’s actual and contingent obligations thereunder.

7.	Set-Off

The Guarantor authorises MEDIOBANCA to apply any credit owing by MEDIOBANCA to the Guarantor in satisfaction of any sum due and payable from the Guarantor to MEDIOBANCA hereunder but unpaid; for this purpose, MEDIOBANCA is authorised to purchase with the moneys so owing by MEDIOBANCA such other currencies as maybe necessary to effect such application. MEDIOBANCA shall not be obliged to exercise any right given to it by this Clause 7.

8.	Expenses

The Guarantor agrees to pay on demand all out-of-pocket expenses (including the reasonable fees and expenses of MEDIOBANCA’s counsel) in any way relating to the enforcement or protection of the rights of MEDIOBANCA hereunder.

9.	Taxes

All payments by the Guarantor hereunder will be made without withholding or deduction for or on account of any present or future taxes or duties of whatsoever nature imposed or levied by or on behalf of any Relevant Jurisdiction and or any government agency, authority or political subdivision therein or thereof having power to tax, unless the withholding or deduction of such taxes or duties is required by law or by the interpretation, application or administration thereof. In any such event, however, the Guarantor shall pay such additional amounts as may be necessary in order that the net amount received by MEDIOBANCA after such withholding or deduction shall equal the full amounts of monies which would have been received by MEDIOBANCA in the absence of such withholding or deduction. The Guarantor will pay all stamp duties and other documentary taxes payable in connection with this Guarantee and will keep MEDIOBANCA indemnified against failure to pay the same.

10.	Waiver of Notice

-6-

The Guarantor waives notice of the acceptance of this Guarantee and of the making of any loans or extensions of credit to the Counterparty, presentment to or demand of payment from anyone whomsoever liable upon any amounts outstanding under the Transaction, presentment, demand, notice of dishonour, protest, notice of any sale of security and all other notices whatsoever, including, without limitation notice that MEDIOBANCA and the Counterparty have entered into any Transaction.

11.	Benefit and Assignment

This Guarantee shall enure to the benefit of MEDIOBANCA, its successors and assigns. The Guarantor may not assign its rights, interest or obligations hereunder to any other person without the prior written consent of MEDIOBANCA.

12.	Certificate

A certificate of MEDIOBANCA as to any amount owing from the Counterparty under the Transaction shall be conclusive evidence of such amount as against the Guarantor in the absence of manifest error.

13.	Waiver of Immunities

The Guarantor irrevocably waives, to the fullest extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit; (ii) jurisdiction of any court; (iii) relief by way of injunction, order for specific performance or for recovery of property; (iv) attachment of its assets (whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings relating to this Guarantee and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any such immunity in any such proceedings.

14.	Governing Law and Jurisdiction

This Guarantee is governed by, and shall be construed in accordance with, the laws of England. The Guarantor hereby irrevocably agrees for the benefit of MEDIOBANCA that the courts of England are to have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Guarantee and that accordingly any suit, action or proceedings (together referred to as “Proceedings”) arising out of or in connection with this Guarantee may be brought in such courts. Nothing contained in this clause shall limit any right to take Proceedings against the Guarantor in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.

15.	Notices

All notices or other communications to any party hereunder shall be duly made when delivered if on a working day or, if not, on the next working day (if by letter) or when received (if by fax) to the party to which the same is being given at, in respect of each party, the following addresses:

To the Guarantor:

-7-


Enel SpA Address: Fax No: Attention:

To MEDIOBANCA:

Piazzetta E. Cuccia n.1 20121 Milan (Iitaly) Fax No: + 39 028829589 Attention: Mr Francesco Carloni
or such other address as either party may hereafter specify to the other in writing.

16.	Severability

If any provision of this Guarantee is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or affect the validity or enforceability of such provisions in any other jurisdiction.

17.	Counterparts

This Guarantee may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

IN WITNESS WHEREOF this Guarantee has been duly executed the day and year first above written.

Enel SpA, which is executing this Guarantee as a deed



By:		By:

-8-

EX-5 6 exhibit5.htm EXHIBIT 5

Enel SpA

as Guarantor

in favour of

MEDIOBANCA – BANCA DI CREDITO FINANZIARIO S.P.A.

_____________________________________________________

Guarantee of

Liabilities arising from the Transaction

____________________________________________________

THIS GUARANTEE is made the 2^nd day of March, 2007 between Enel SpA (the “Guarantor”) and Mediobanca – Banca di Credito Finanziario S.p.A. (“MEDIOBANCA”)

WHEREAS

(A)	On 2 March 2007 a total return equity swap has been entered into between Mediobanca and Enel Energy Europe Srl (the “Counterparty”) on 4,500,000 common stock shares of Endesa S.A. (the “Transaction” ) evidenced by an ISDA Confirmation.

(B)	the Guarantor has agreed pursuant to the terms and conditions of this agreement (the “Guarantee”) to guarantee all present and future obligations of the Counterparty to MEDIOBANCA under the Transaction..

1.	Interpretation

All terms used and not otherwise defined in this Guarantee shall have the meanings given to those terms in the Transaction.

2.	Guarantee

2.1 For good and sufficient consideration the Guarantor irrevocably and unconditionally guarantees to MEDIOBANCA the due and punctual observance and performance by the Counterparty of all its obligations under the Transaction and agrees to pay to MEDIOBANCA from time to time on demand any and every sum or sums of money from time to time due and payable (but unpaid) by the Counterparty under or pursuant to the Transaction or on account of any breach thereof and agrees as a primary obligation to indemnify MEDIOBANCA from time to time on demand from and against any loss incurred by MEDIOBANCA as a result of any of the obligations of the Counterparty under the Transaction being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to MEDIOBANCA, the amount of such loss being the amount which MEDIOBANCA would otherwise have been entitled to recover from the Counterparty.

2.2 Payment to MEDIOBANCA shall be made in the currency in which such amounts are payable by the Counterparty and in immediately available freely transferable, cleared funds to such account with such bank as MEDIOBANCA may specify, together with interest on such amounts at the rate per annum that would be payable by the Counterparty under Section 2(e) of the 1992 ISDA Master Agreement in respect of such amount from the date when the amounts became due from the Guarantor until payment in full of such amounts.

2.3 All moneys received, recovered or realised by MEDIOBANCA by virtue of Clause 2 may, in MEDIOBANCA’s discretion, be credited to a suspense or impersonal account and may be held in such account for so long as MEDIOBANCA thinks fit pending the application from time to time (as MEDIOBANCA may think fit) of such moneys in or towards the payment and discharge of any amounts owing by the Guarantor to MEDIOBANCA under this Guarantee.

-2-

3.	Preservation of Rights

3.1 The obligations of the Guarantor herein contained shall be in addition to and independent of every other security which MEDIOBANCA may at any time hold in respect of any of the Counterparty’s obligations under the Transaction.

3.2 Neither the obligations of the Guarantor herein contained nor the rights, powers and remedies conferred in respect of the Guarantor upon MEDIOBANCA by the Transaction or by law shall be discharged, impaired or otherwise affected by:

(i)

the winding-up, dissolution, administration or reorganisation of the Counterparty or any change in its status, function, control or ownership;

(ii)

any of the obligations of the Counterparty under the Transaction or under any other security relating to the Transaction being or becoming illegal, invalid, unenforceable or ineffective in any respect;

(iii)

time or other indulgence being granted or agreed to be granted to the Counterparty in respect of its obligations under the Transaction or under any such other security;

(iv)

any amendment to, or any variation, waiver or release of any obligation of the Counterparty under the Transaction or under any such other security;

(v)

any failure to take, or fully to take, any security contemplated by the Master Agreement or otherwise agreed to be taken in respect of the Counterparty’s obligations under the Transaction;

(vi)

any failure to realise or fully to realise the value of, or any release, discharge, exchange or substitution of, any such security taken in respect of the Counterparty’s obligations under the Transaction; or

(vii)

any other act, event or omission which, but for this Clause 3.2, might operate to discharge, impair or otherwise affect any of the obligations of the Guarantor herein contained or any of the rights, powers or remedies conferred upon MEDIOBANCA by the Transaction or by law.

3.3 Any settlement or discharge between the Guarantor and MEDIOBANCA shall be conditional upon no security or payment to MEDIOBANCA by the Counterparty or the Guarantor being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of general application for the time being in force and, if any such security or payment is so avoided or reduced, MEDIOBANCA shall be entitled to recover the value or amount of such security or payment from the Guarantor subsequently as if such discharge had not occurred.

-3-

3.4 MEDIOBANCA shall not be obliged before exercising any of the rights, powers or remedies conferred upon it in respect of the Guarantor hereby or by law:

(i)

to make any demand of the Counterparty;

(ii)

to take any action or obtain judgment in any court against the Counterparty;

(iii)

to make or file any claim or proof in a winding-up or dissolution of the Counterparty; or

(iv)

to enforce or seek to enforce any security taken in respect of any of the obligations of the Counterparty under the Transaction.

3.5 The Guarantor agrees that, so long as any amounts are or may be owed by the Counterparty under the Transaction and the Transaction has not been terminated, any rights which the Guarantor may at any time have by reason of performance by it of its obligations hereunder:

(i)

to be indemnified by the Counterparty or to exercise any right of set-off against the Counterparty, or to exercise any other right of contribution or exercise any right of security or any other legal remedies; and/or

(ii)

to claim any contribution from or exercise any right of set-off against any other guarantor of the Counterparty’s obligations under the Transaction; and/or

(iii)

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of MEDIOBANCA under the Transaction or of any other security taken pursuant to, or in connection with, the Transaction by MEDIOBANCA

shall be exercised by the Guarantor in such manner and upon such terms as MEDIOBANCA may require and the Guarantor further agrees to hold any moneys at any time received by it as a result of the exercise of any such rights for and on behalf of, and to the order of, MEDIOBANCA for application in or towards payment of any sums at any time owed by the Counterparty under the Transaction.

4.	Representations and Warranties

4.1

The Guarantor represents that:

(i)

it is duly incorporated in Italy and has power to enter into and perform this Guarantee and has taken all necessary corporate action to authorise the execution, delivery and performance of this Guarantee;

(ii)

the execution, delivery and performance of this Guarantee will not contravene any law or regulation to which the Guarantor is subject or any provision of the Guarantor’s

-4-

memorandum and articles of association and all governmental or other consents requisite for such execution, delivery and performance are in full force and effect;

(iii)

no obligation of the Guarantor is secured by, and the execution, delivery and performance of this Guarantee will not result in the existence of or oblige the Guarantor to create, any mortgage, charge, pledge, lien or other encumbrance over any present or future revenues or assets of the Guarantor;

(iv)

the execution, delivery and performance of this Guarantee will not cause the Guarantor to be in breach of or default under any agreement binding on it or any of its assets and no material litigation or administrative proceeding before, by or of any court or governmental authority is pending or (so far as the Guarantor knows) threatened against it or any of its assets.

(v)

this Guarantee constitutes the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with its terms.

4.2 The above representations and warranties shall remain true and correct at all times until such time as there are no amounts owed or which may be owed by the Counterparty under the Transaction and the Transaction has been determined.

5.	Currency of Account

Moneys received or recovered by MEDIOBANCA from the Guarantor in a currency other than that in which the said sums are due and payable under or pursuant to the Transaction shall be converted into the latter currency at the rate at which MEDIOBANCA would have sold the latter currency for the former at the opening of business on the latest day before MEDIOBANCA’s receipt or recovery on which MEDIOBANCA quoted generally a rate of exchange for such a sale. The Guarantor shall indemnify MEDIOBANCA against losses (including losses flowing from fluctuations in rates of exchange) arising as a result of payment in a currency other than that in which the said sums are due and payable whether under the Transaction or this Guarantee or as a result of any order, proof or claim being expressed or payable in a different currency.

6.	Continuing Security

The obligations of the Guarantor herein contained shall constitute and be continuing obligations notwithstanding any settlement of account or other matter or thing whatsoever, and in particular but without limitation, shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the obligations of the Counterparty under the Transaction and shall continue in full force and effect until final payment in full of all amounts owing by the Counterparty thereunder and total satisfaction of all the Counterparty’s actual and contingent obligations thereunder.

7.	Set-Off

-5-

The Guarantor authorises MEDIOBANCA to apply any credit owing by MEDIOBANCA to the Guarantor in satisfaction of any sum due and payable from the Guarantor to MEDIOBANCA hereunder but unpaid; for this purpose, MEDIOBANCA is authorised to purchase with the moneys so owing by MEDIOBANCA such other currencies as maybe necessary to effect such application. MEDIOBANCA shall not be obliged to exercise any right given to it by this Clause 7.

8.	Expenses

The Guarantor agrees to pay on demand all out-of-pocket expenses (including the reasonable fees and expenses of MEDIOBANCA’s counsel) in any way relating to the enforcement or protection of the rights of MEDIOBANCA hereunder.

Taxes

All payments by the Guarantor hereunder will be made without withholding or deduction for or on account of any present or future taxes or duties of whatsoever nature imposed or levied by or on behalf of any Relevant Jurisdiction and or any government agency, authority or political subdivision therein or thereof having power to tax, unless the withholding or deduction of such taxes or duties is required by law or by the interpretation, application or administration thereof. In any such event, however, the Guarantor shall pay such additional amounts as may be necessary in order that the net amount received by MEDIOBANCA after such withholding or deduction shall equal the full amounts of monies which would have been received by MEDIOBANCA in the absence of such withholding or deduction. The Guarantor will pay all stamp duties and other documentary taxes payable in connection with this Guarantee and will keep MEDIOBANCA indemnified against failure to pay the same.

10.

Waiver of Notice

The Guarantor waives notice of the acceptance of this Guarantee and of the making of any loans or extensions of credit to the Counterparty, presentment to or demand of payment from anyone whomsoever liable upon any amounts outstanding under the Transaction, presentment, demand, notice of dishonour, protest, notice of any sale of security and all other notices whatsoever, including, without limitation notice that MEDIOBANCA and the Counterparty have entered into any Transaction.

11.

Benefit and Assignment

This Guarantee shall enure to the benefit of MEDIOBANCA, its successors and assigns. The Guarantor may not assign its rights, interest or obligations hereunder to any other person without the prior written consent of MEDIOBANCA.

12.

Certificate

A certificate of MEDIOBANCA as to any amount owing from the Counterparty under the Transaction shall be conclusive evidence of such amount as against the Guarantor in the absence of manifest error.

-6-

13.

Waiver of Immunities

The Guarantor irrevocably waives, to the fullest extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit; (ii) jurisdiction of any court; (iii) relief by way of injunction, order for specific performance or for recovery of property; (iv) attachment of its assets (whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings relating to this Guarantee and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any such immunity in any such proceedings.

14.

Governing Law and Jurisdiction

This Guarantee is governed by, and shall be construed in accordance with, the laws of England. The Guarantor hereby irrevocably agrees for the benefit of MEDIOBANCA that the courts of England are to have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Guarantee and that accordingly any suit, action or proceedings (together referred to as “Proceedings”) arising out of or in connection with this Guarantee may be brought in such courts. Nothing contained in this clause shall limit any right to take Proceedings against the Guarantor in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.

15.

Notices

All notices or other communications to any party hereunder shall be duly made when delivered if on a working day or, if not, on the next working day (if by letter) or when received (if by fax) to the party to which the same is being given at, in respect of each party, the following addresses:

To the Guarantor:

Enel SpA

Address:

Fax No:

Attention:

To MEDIOBANCA:

Piazzetta E. Cuccia n.1

20121 Milan

(Iitaly)

Fax No:

+ 39 028829589

Attention:

Mr Francesco Carloni

or such other address as either party may hereafter specify to the other in writing.

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16.

Severability

If any provision of this Guarantee is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or affect the validity or enforceability of such provisions in any other jurisdiction.

17.

Counterparts

This Guarantee may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

IN WITNESS WHEREOF this Guarantee has been duly executed the day and year first above written.

Enel SpA, which is executing this Guarantee as a deed


By:			By:

-8-

EX-99 7 exh6.htm EXHIBIT 6

Enel SpA

as Guarantor

in favour of

MEDIOBANCA – BANCA DI CREDITO FINANZIARIO S.P.A.

_____________________________________________________

Guarantee of

Liabilities arising from the Transaction

____________________________________________________

THIS GUARANTEE is made the 12^th day of March, 2007 between Enel SpA (the “Guarantor”) and Mediobanca – Banca di Credito Finanziario S.p.A. (“MEDIOBANCA”)

WHEREAS

(A)	On 12 March 2007 a total return equity swap has been entered into between Mediobanca and Enel Energy Europe Srl (the “Counterparty”) on 31,500,000 common stock shares of Endesa S.A. (the “Transaction” ) evidenced by an ISDA Confirmation.

(B)	the Guarantor has agreed pursuant to the terms and conditions of this agreement (the “Guarantee”) to guarantee all present and future obligations of the Counterparty to MEDIOBANCA under the Transaction.

1.	Interpretation

All terms used and not otherwise defined in this Guarantee shall have the meanings given to those terms in the Transaction.

2.	Guarantee

3.	Preservation of Rights

(i)

the winding-up, dissolution, administration or reorganisation of the Counterparty or any change in its status, function, control or ownership;

(ii)

(iii)

time or other indulgence being granted or agreed to be granted to the Counterparty in respect of its obligations under the Transaction or under any such other security;

(iv)

any amendment to, or any variation, waiver or release of any obligation of the Counterparty under the Transaction or under any such other security;

(v)

any failure to take, or fully to take, any security contemplated by the Master Agreement or otherwise agreed to be taken in respect of the Counterparty’s obligations under the Transaction;

(vi)

(vii)

3.4 MEDIOBANCA shall not be obliged before exercising any of the rights, powers or remedies conferred upon it in respect of the Guarantor hereby or by law:

(i)

to make any demand of the Counterparty;

(ii)

to take any action or obtain judgment in any court against the Counterparty;

(iii)

to make or file any claim or proof in a winding-up or dissolution of the Counterparty; or

(iv)

to enforce or seek to enforce any security taken in respect of any of the obligations of the Counterparty under the Transaction.

(i)

(ii)

to claim any contribution from or exercise any right of set-off against any other guarantor of the Counterparty’s obligations under the Transaction; and/or

(iii)

4.	Representations and Warranties

4.1

The Guarantor represents that:

(i)

(ii)

the execution, delivery and performance of this Guarantee will not contravene any law or regulation to which the Guarantor is subject or any provision of the Guarantor’s memorandum and articles of association and all governmental or other consents requisite for such execution, delivery and performance are in full force and effect;

(iii)

(iv)

(v)

this Guarantee constitutes the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with its terms.

5.	Currency of Account

6.	Continuing Security

7.	Set-Off

8.	Expenses

Taxes

10.

Waiver of Notice

11.

Benefit and Assignment

12.

Certificate

A certificate of MEDIOBANCA as to any amount owing from the Counterparty under the Transaction shall be conclusive evidence of such amount as against the Guarantor in the absence of manifest error.

13.

Waiver of Immunities

14.

Governing Law and Jurisdiction

15.

Notices

To the Guarantor:

Enel SpA

Address:

Fax No:

Attention:

To MEDIOBANCA:

Piazzetta E. Cuccia n.1

20121 Milan

(Iitaly)

Fax No:

+ 39 028829589

Attention:

Mr Francesco Carloni

or such other address as either party may hereafter specify to the other in writing.

16.

Severability

17.

Counterparts

This Guarantee may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

IN WITNESS WHEREOF this Guarantee has been duly executed the day and year first above written.

Enel SpA, which is executing this Guarantee as a deed

By:

...............................................

By:

...............................................

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