Conformed Copy

  	
   

  	
  Exhibit 4.20

  



 


 


Dated 11 November 2009


 


 


LUXOTTICA GROUP S.p.A.

as Borrower


 


 


and


 


LUXOTTICA U.S. HOLDINGS CORP.


 


LUXOTTICA S.r.l.


 


as Original Guarantors


 


 


and


 


Calyon S.A., Milan Branch


 


Deutsche Bank S.p.A.


 


Mediobanca — Banca di Credito Finanziario S.p.A.


 


UniCredit Corporate Banking S.p.A.


 


as
Mandated Lead Arrangers, Bookrunners and Original Lenders


 


 


and


 


 


Mediobanca — Banca di Credito Finanziario S.p.A.


 


as Agent


 


 


TERM FACILITY AGREEMENT


 


Euro 300,000,000


 

















 


Table of Contents


 


	
  Contents

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  Definitions and Interpretation

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  The Facility

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  Purpose

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4

  	
   

  	
  Conditions of Utilisation

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5

  	
   

  	
  Utilisation

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
  Repayment

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7

  	
   

  	
  Prepayment and Cancellation

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8

  	
   

  	
  Interest

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9

  	
   

  	
  Interest Periods

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10

  	
   

  	
  Changes to the Calculation of
  Interest

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11

  	
   

  	
  Fees

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12

  	
   

  	
  Tax Gross-up and Indemnities

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13

  	
   

  	
  Increased Costs

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14

  	
   

  	
  Other Indemnities

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15

  	
   

  	
  Mitigation by the Lenders

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16

  	
   

  	
  Costs and Expenses

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  17

  	
   

  	
  Guarantee and Indemnity

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18

  	
   

  	
  Representations

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  19

  	
   

  	
  Information Undertakings

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  20

  	
   

  	
  Financial Covenants

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21

  	
   

  	
  General Undertakings

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  22

  	
   

  	
  Events of Default

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  23

  	
   

  	
  Changes to the Lenders

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  24

  	
   

  	
  Confidentiality

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  25

  	
   

  	
  Changes to the Obligors

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  26

  	
   

  	
  Role of the Agent

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  27

  	
   

  	
  Conduct of Business by the
  Finance Parties

  	
   

  	
  68

  



 


i

















 


	
  28

  	
   

  	
  Sharing Among the Finance
  Parties

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  29

  	
   

  	
  Payment Mechanics

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30

  	
   

  	
  Set-off

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31

  	
   

  	
  Notices

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  32

  	
   

  	
  Calculations and Certificates

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  33

  	
   

  	
  Partial Invalidity

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  34

  	
   

  	
  Remedies and Waivers

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  35

  	
   

  	
  Amendments and Waivers

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  36

  	
   

  	
  USA Patriot Act

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  37

  	
   

  	
  Governing Law

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  38

  	
   

  	
  Enforcement

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  39

  	
   

  	
  US provisions

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1 The Parties

  	
   

  	
  80

  
	
   

  	
   

  	
   

  
	
  Part 1 The Obligors

  	
   

  	
  80

  
	
   

  	
   

  	
   

  
	
  Part 2 The Original
  Lenders

  	
   

  	
  81

  
	
   

  	
   

  	
   

  
	
  Schedule 2 Conditions Precedent
  to initial Utilisation

  	
   

  	
  82

  
	
   

  	
   

  	
   

  
	
  Schedule 3 Requests

  	
   

  	
  84

  
	
   

  	
   

  	
   

  
	
  Part 1 Utilisation Request

  	
   

  	
  84

  
	
   

  	
   

  	
   

  
	
  Part 2 Selection Notice

  	
   

  	
  85

  
	
   

  	
   

  	
   

  
	
  Schedule 4 Mandatory Cost
  Formulae

  	
   

  	
  86

  
	
   

  	
   

  	
   

  
	
  Schedule 5 Form of
  Transfer Certificate

  	
   

  	
  88

  
	
   

  	
   

  	
   

  
	
  Schedule 6 Form of
  Compliance Certificate

  	
   

  	
  90

  
	
   

  	
   

  	
   

  
	
  Schedule 7 Existing Security

  	
   

  	
  91

  
	
   

  	
   

  	
   

  
	
  Schedule 8 Confidentiality
  Undertaking

  	
   

  	
  92

  
	
   

  	
   

  	
   

  
	
  Schedule 9 Timetables

  	
   

  	
  96

  
	
   

  	
   

  	
   

  
	
  Schedule 10 Authorised
  Signatories

  	
   

  	
  97

  
	
   

  	
   

  	
   

  
	
  Schedule 11 Existing
  Indebtedness

  	
   

  	
  98

  
	
   

  	
   

  	
   

  
	
  Schedule 12 Additional Guarantors

  	
   

  	
  100

  
	
   

  	
   

  	
   

  
	
  Part 1 Conditions Precedent required to be
  delivered by an Additional Guarantor

  	
   

  	
  100

  



 


ii

















 


	
  Part 2 Form of Accession Letter

  	
   

  	
  101

  



 


iii

















 


This
Agreement is made in London on 11 November 2009 and between:


 


(1)                              LUXOTTICA GROUP S.p.A., as borrower (the “Borrower”);


 


(2)                              LUXOTTICA U.S. HOLDINGS CORP. and LUXOTTICA S.r.l., as original guarantors (the “Original Guarantors”);


 


(3)                              CALYON S.A., MILAN BRANCH, DEUTSCHE BANK S.P.A., MEDIOBANCA — BANCA DI
CREDITO FINANZIARIO S.P.A., UNICREDIT CORPORATE BANKING S.P.A. as
mandated lead arrangers and bookrunners (whether acting individually or
together, the “Mandated Lead  Arrangers” and
the “Bookrunners”);


 


(4)                              THE FINANCIAL INSTITUTIONS listed in Part 2
of Schedule 1 (The Parties) as original lenders (the “Original
Lenders”); and


 


(5)                              MEDIOBANCA - BANCA DI CREDITO FINANZIARIO S.P.A. as
agent of the other Finance Parties (the “Agent”).


 


It
is agreed as follows:


 


Section 1

Interpretation


 


1                                      Definitions
and Interpretation


 


1.1                            Definitions


 


In this Agreement:


 


“Accession Letter” means a document
substantially in the form set out in part 2 of Schedule 12 (Additional
Guarantors);


 


“Acquisition” means the acquisition of
any Target by any member of the Group;


 


“Additional Cost Rate” has the meaning
given to it in Schedule 4 (Mandatory Cost formulae);


 


“Additional Guarantor” means any member
of the Group which becomes a Guarantor in accordance with Clause 17.11
(Additional Guarantors);


 


“Affiliate” means, in relation to any
person, a Subsidiary of that person or a Holding Company of that person or any
other Subsidiary of that Holding Company;


 


“Agency Fee Letter” means the letter
dated on or about the date of this Agreement between the Borrower and the Agent
relating to the payment by the Borrower of the agency fee to the Agent as set
out in such letter;


 


“Agreed Exceptions” means with respect
to any action, proceeding or procedure referred to in Clause 22.7 (Insolvency
Proceedings) and Clause 22.8 (Creditors’ Process and final judgment) (each a “relevant procedure”):


 


(a)                                the relevant procedure is
discharged within 30 days of its commencement; or


 


(b)                               on or prior to the end of the
30 day period mentioned in (a) above it is demonstrated to the
satisfaction of the Majority Lenders (in their discretion but acting in good
faith) that:


 


1

















 


(i)                                  the relevant procedure is
frivolous and vexatious and is being duly defended in good faith and by
appropriate proceedings; or


 


(ii)                               the relevant procedure is
being duly defended in good faith and by appropriate proceedings and the
Borrower or the relevant Obligor has sufficient funds to meet the maximum
potential liability which may result from such proceedings,


 


and (in any event) within 60 days of the end of the 30 day period
mentioned in (a) above, the relevant procedure is discharged;


 


“Anti-Terrorism Law”
means each of:


 


(a)                           Executive Order No. 13224 of September 23,
2001 - Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten To Commit, or Support Terrorism (the “Executive Order”);


 


(b)                          the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56 (commonly known as the USA Patriot Act);


 


(c)                           the Money Laundering Control Act of 1986, Public Law
99-570;


 


(d)                          the International Emergency Economic Powers Act, 50
U.S.C. §§ 1701 et seq, the Trading with the Enemy Act, 50 U.S.C. App. §§ 1 et
seq, any Executive Order or regulation promulgated thereunder and administered
by the Office of Foreign Assets Control (“OFAC”)
of the U.S. Department of the Treasury; and


 


(e)                           any similar law enacted in the United States of
America subsequent to the date of this Agreement;


 


“Authorisation” means an authorisation,
consent, approval, resolution, licence, exemption, filing, notarisation or
registration;


 


“Authorised Signatory” means the persons
listed in Schedule 10 (Authorised Signatories) and any other person authorised
to execute any document on behalf of the Borrower and/or other Obligors (as the
case may be), as is from time to time communicated by the Borrower in writing
to the Agent;


 


“Availability Period” means the 1 (one)
month period starting from and including the Signing Date;


 


“Available Commitment” means a Lender’s
Commitment under the Facility minus:


 


(a)                                the amount of its
participation in any outstanding Loans under the Facility; and


 


(b)                               in relation to any proposed
Utilisation, the amount of its participation in any Loans (other than any Loan
which is the subject of the relevant Utilisation Request) that are due to be
made under the Facility on or before the proposed Utilisation Date;


 


“Available Facility”
means the aggregate for the time being of each Lender’s Available Commitment in
respect of the Facility;


 


“Bank Guarantee” means any guarantees or
performance bonds required to be issued by an Eligible Deposit Bank in the
ordinary course of business of either the Borrower or Luxottica U.S. Holdings
Corp. and upon terms usual for such business;


 


2

















 


“Basel II”
has the meaning attributed to that term in paragraph 13.3.1 of Clause 13
(Increased Costs) of this Agreement;


 


“Break Costs” means the amount (if any)
by which:


 


(a)                                the interest (excluding any
Margin) which a Lender should have received for the period from the date of
receipt of all or any part of its participation in a Loan or Unpaid Sum to the
last day of the current Interest Period in respect of that Loan or Unpaid Sum,
had the principal amount or Unpaid Sum received been paid on the last day of
that Interest Period;


 


exceeds:


 


(b)                               the amount which that Lender
would be able to obtain by placing an amount equal to the principal amount or
Unpaid Sum received by it on deposit with a leading bank in the Relevant
Interbank Market for a period starting on the Business Day following receipt or
recovery and ending on the last day of the current Interest Period;


 


“Business Day” means a day (other than a
Saturday or Sunday) which is not a public holiday and on which banks are open
for general business in Milan, London and New York which is a TARGET Day;


 


“Cash” has the meaning given to it in
FAS95;


 


“Cash Equivalents” has the meaning given
to it in FAS95;


 


“Code” means, at any date, the U.S.
Internal Revenue Code of 1986 (or any successor legislation thereto) as amended
from time to time, and the regulations promulgated and rulings issued
thereunder, all as the same may be in effect at such date;


 


“Commitment” means:


 


(a)                                in relation to an Original
Lender, the amount set opposite its name under the heading “Commitment” in
Schedule 1 Part 2 (The Parties) and the amount of any other Commitment
transferred to it under this Agreement; and


 


(b)                               in relation to any other
Lender, the amount of any Commitment transferred to it under this Agreement,


 


to the extent not cancelled, reduced or transferred by
it under this Agreement;


 


“Compliance Certificate” means a
certificate substantially in the form set out in Schedule 6 (Form of
Compliance Certificate);


 


“Confidentiality Undertaking” means a
confidentiality undertaking substantially in a recommended form of the LMA as
set out in Schedule 8 (Confidentiality Undertaking) or in any other form agreed
between the Borrower and the Agent;


 


“Consolidated Equity” means, with
respect to the Group, the Shareholders’ Equity as evidenced in the latest
published Consolidated Financial Statements or Consolidated Quarterly Financial
Statements (as the case may be);


 


“Consolidated Financial Statements”
means, with respect to the Group, the latest published audited consolidated
financial statements of the Group prepared in accordance with GAAP in respect
of its financial year;


 


3

















 


“Consolidated Pro-Forma Financial Statements”
means, during the Pro-Forma Relevant Period and with respect to the Group, the
latest published audited consolidated financial statements of the Group
prepared in accordance with GAAP in respect of its financial year, including,
on a pro-forma basis, the relevant results of any company acquired by a member
of the Group and the Subsidiaries of such company;


 


“Consolidated Total Assets” means, with
respect to the Group, the total assets as evidenced in the latest published Consolidated
Financial Statements or Consolidated Quarterly Financial Statements (as the
case may be);


 


“Consolidated Quarterly Financial Statements”
means, with respect to the Group, the latest quarterly financial statements of
the Group in respect of each of its financial quarters (other than the last
quarter in each financial year);


 


“Consolidated Quarterly Pro-Forma Financial
Statements” means, during the Pro-Forma Relevant Period with respect
to the Group, the latest quarterly financial statements of the Group in respect
of each of its financial quarters (other than the last quarter in each
financial year), including, on a pro-forma basis, the relevant results of any
company acquired by a member of the Group and the Subsidiaries of such company;


 


“Default” means an Event of Default or
any event or circumstance specified in Clause 22 (Events of Default) which
would (with the expiry of a grace period, the giving of notice, the making of
any determination under the Finance Documents or any combination of any of the
foregoing) be an Event of Default;


 


“Del Vecchio Family Member” means any of
(A) Leonardo Del Vecchio; (B) his spouses; (C) the children of
the spouses; and (D) the parents and persons (including his descendants)
related by consanguinity or affinity to Leonardo del Vecchio up to the sixth
degree;


 


“Eligible Deposit Bank” means any bank
or financial institution with a short-term rating of at least A1 granted by
Standard & Poors’ Corporation or P1 granted by Moody’s Investors
Services, Inc;


 


“Employee Plan” means an employee
pension benefit plan (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA, and in respect of which a U.S. Group Company or any ERISA Affiliate
is (or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an “employer” as
defined in Section 3(5) of ERISA;


 


“Environmental Claim” means any claim,
proceeding or investigation by any person in respect of any Environmental Law;


 


“Environmental Law” means any applicable
law in any jurisdiction in which any member of the Group conducts business
which relates to the pollution or protection of the environment or harm to or
the protection of human health or the health of animals or plants, including,
without limitation, the National Environmental Policy Act (42 U.S.C. §4321 et
seq.), the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. §9601 et seq.), as amended by the Superfund Amendments and
Reauthorisation Act of 1986, the Resource Conservation and Recovery Act (42
U.S.C. §6901 et seq.), as amended by the Hazardous and Solid Waste Amendments
of 1984, the Hazardous Materials Transport Act (49 U.S.C. §1801 et seq.), the
Toxic Substances Control Act (15 U.S.C. §2601 et seq.), the Clean Water Act (33
U.S.C. §1321 et seq.), the Clean Air Act (42 U.S.C. §7401 et seq.,), the
Occupational Safety and Health Act (29


 


4

















 


U.S.C. §651 et seq.), the Federal Water Pollution Control Act (33
U.S.C. §1251 et seq.), the Safe Drinking Water Act (42 U.S.C. §3808 et seq.),
and any similar federal, state or local laws, ordinances or regulations
implementing such laws;


 


“Environmental Permits” means any
permit, licence, consent, approval and other authorisation and the filing of
any notification, report or assessment required under any Environmental Law for
the operation of the business of any member of the Group conducted on or from
the properties owned or used by the relevant member of the Group;


 


“ERISA” means, at any date, the United
States Employee Retirement Income Security Act of 1974 (or any successor
legislation thereto) as amended from time to time, and the regulations
promulgated and rulings issued thereunder, all as the same may be in effect at
such date;


 


“ERISA Affiliate” means any person that
for purposes of Title I and Title IV of ERISA and Section 412 of the Code
would be deemed at any relevant time to be a single employer with a U.S. Group
Company, pursuant to Section 414 (b), (c), (m) or (o) of the
Code or Section 4001 of ERISA;


 


“ERISA Event” means within the past six
years: (i) any reportable event, as defined in Section 4043 of ERISA,
with respect to an Employee Plan, as to which PBGC has not by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified of
such event; (ii) the filing of a notice of intent to terminate any
Employee Plan, if such termination would require material additional
contributions in order to be considered a standard termination within the
meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of
ERISA of a notice of intent to terminate any Employee Plan or the termination
of any Employee Plan under Section 4041 (c) of ERISA; (iii) the
institution of proceedings under Section 4042 of ERISA by the PBGC for the
termination of, or the appointment of a trustee to administer, any Employee
Plan; (iv) the failure to make a required contribution to any Employee
Plan that would result in the imposition of an encumbrance under Section 412
of the Code or Section 302 of ERISA or the filing of any request for a
minimum funding waiver under Section 412 of the Code with respect to any
Employee Plan or to its knowledge a Multiemployer Plan; (v) an engagement
in a non-exempt prohibited transaction within the meaning of Section 4975
of the Code or Section 406 of ERISA; (vi) the complete or partial
withdrawal of any U.S. Group Company or any ERISA Affiliate from a
Multiemployer Plan; or (vii) an Obligor or an ERISA Affiliate incurring
any liability under Title IV of ERISA with respect to any Employee Plan (other
than premiums due and not delinquent under Section 4007 of ERISA);


 


“Event of Default” means any event or
circumstance specified as such in Clause 22 (Events of Default);


 


“EURIBOR” means:


 


(a)                                for any Interest Period in
relation to any Loan, the rate per annum equal to the Banking Federation of the
European Union EURIBOR Rate (the BFEU EURIBOR),
as published by Reuters (or other commercially available source providing quotations
of BFEU EURIBOR as designated by the Agent from time to time) (the Screen) at
approximately 11.00 a.m. (Milan time) on the Quotation Day for such
Interest Period, for deposits in Euro (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period (the Screen Rate);


 


5

















 


(b)                               for any Interest Period of a
duration which the Screen Rate does not appear on the Screen, the rate (rounded
upward to four decimals places) determined by linear interpolation between the
Screen Rates for the nearest shorter and longer durations to the duration of
that Interest Period; and


 


(c)                                if no such Screen Rate is
available at such time for any reason other than as referred to in paragraph
(b), the arithmetic mean (rounded upward to four decimals places) of the rates
as supplied to the Agent at its request quoted by the Reference Banks to
leading banks in the European interbank market for Euro at approximately 11.00 a.m.
(Milan time) for the offering of deposits in Euro for a period comparable to
that Interest Period on the Quotation Day for such Interest Period;


 


“Existing Indebtedness” means the
financial indebtedness of the Group set out in Schedule 11 (Existing
Indebtedness);


 


“Facility” means the term loan facility
made available under this Agreement as described in Clause 2 (The Facility);


 


“Facility Fee Letter” means the letter
dated on or about the date of this Agreement between the Mandated Lead
Arrangers and the Bookrunners and the Borrower relating to the payment by the
Borrower of the upfront facility fee to the Lenders as set out in such letter;


 


“Facility Office” means:


 


(d)                               in relation to an Original
Lender, the office or offices notified by that Original Lender to the Agent in
writing by not less than five Business Days’ notice as the office or offices
through which it will perform its obligations under this Agreement; and


 


(e)                                in relation to a New Lender
(as defined in Clause 23.1 (Assignments and transfers by the Lenders)), the
office or offices notified by the New Lender to the Agent in the Transfer
Certificate completed pursuant to Clause 23.5 (Procedure for Transfer) as the
office or offices through which it will perform its obligations under this
Agreement;


 


“FAS95” means Financial Accounting
Standards Boards (FAS) Statement of Financial Accounting Standards No. 95
“Statement of Cash Flows” as amended by other GAAP standards;


 


“Finance Document”
means this Agreement, the Agency Fee Letter, the Facility Fee Letter, any Accession
Letter, any Selection Notice, any Utilisation Request and any other document
designated as such by the Agent and the Borrower;


 


“Finance Party” means any of the Agent,
the Mandated Lead Arrangers, the Bookrunners or any Lender;


 


“Financial Indebtedness” means any
indebtedness for or in respect of:


 


(a)                                moneys borrowed (excluding,
for the avoidance of doubt, any unutilised commitment of whatsoever nature in
respect of moneys to be borrowed);


 


(b)                               any amount raised by
acceptance under any acceptance credit facility or dematerialised equivalent;


 


6

















 


(c)                                any amount raised pursuant to
any note purchase facility or the issue of bonds, notes, debentures, loan stock
or any similar instrument;


 


(d)                               the amount of any liability in
respect of any lease or hire purchase contract which would, in accordance with
GAAP, be treated as a finance or capital lease;


 


(e)                                receivables sold or discounted
(other than any receivables to the extent they are sold on a non-recourse basis);


 


(f)                                  any amount raised under any
other transaction (including any forward sale or purchase agreement) having the
commercial effect of a borrowing;


 


(g)                               any derivative transaction
entered into in connection with protection against or benefit from fluctuation
in any rate or price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into account) only
to the extent such derivative transactions are recorded in the balance sheet of
any member of the Group in accordance with GAAP;


 


(h)                               any counter-indemnity
obligation in respect of a guarantee, indemnity, bond, standby or documentary
letter of credit or any other instrument issued by a bank or financial
institution;


 


(i)                                   any amount raised by the issue
of redeemable shares;


 


(j)                                   any amount of any liability
under an advance or deferred purchase agreement if one of the primary reasons
behind the entry into this agreement is to raise finance; and


 


(k)                                (without double counting) the
amount of any liability in respect of any guarantee or indemnity for any of the
items referred to in paragraphs (a) to (j) above;


 


“GAAP” means, as the case maybe, the
International Accounting Standards and IFRS established by the I.A.S.B.
(International Accounting Standards Board), as per EC Regulation 1606/2002 or
Italian GAAP or any other generally accepted accounting principles as in effect
from time to time in the Republic of Italy or US GAAP or any other generally
accepted accounting principles as in effect from time to time in USA;


 


“Guarantor” means each Original
Guarantor and any Additional Guarantor;


 


“Group” means the Borrower and its
Subsidiaries for the time being (and, for the avoidance of doubt, following any
Acquisition “Group” shall include any relevant
Target Group for the time being);


 


“Holding Company” means, in relation to
a company or corporation, any other company or corporation in respect of which
it is a Subsidiary;


 


“Indebtedness for Borrowed Money” means
Financial Indebtedness save for any indebtedness for or in respect of
paragraphs (g), (h) and (k) of the definition of “Financial Indebtedness”;


 


“Intellectual Property” means all
patents, trade marks, service marks, designs, models, business names,
copyrights, design rights, inventions, confidential information, know-how and
other intellectual property rights and interests, whether registered or
unregistered, and the benefit of all licences, applications, rights to use and
monies deriving from any such intellectual property now or hereafter belonging
to any member of the Group;


 


7
















 


“Interest Period” means, in relation to
a Loan, each period determined in accordance with Clause 9 (Interest Periods)
and, in relation to an Unpaid Sum, each period determined in accordance with
Clause 8.3 (Default interest);


 


“IRS” means the United States Internal
Revenue Service or any successor thereto;


 


“Italian Civil Code” means the Civil
Code enacted by Royal Decree No. 262 of 6 March 1942, as in full
force and effect at any relevant time in the Republic of Italy;


 


“Italian GAAP” means the statutory accounting
principles generally accepted in Italy, as may be interpreted and amended by
the “Consiglio Nazionale dei Commercialisti” and the “Consiglio Nazionale dei
Ragionieri” or the “Organismo Italiano di Contabilità” (O.I.C.);


 


“Italian Obligor” means Luxottica Group
S.p.A. or Luxottica S.r.l.;


 


“Lender” means:


 


(a)                                any Original Lender; and


 


(b)                               any bank or financial
institution which has become a Party in accordance with Clause 23 (Changes to
the Lenders),


 


which in each case has not ceased to be a Party in
accordance with the terms of this Agreement;


 


“LMA” means the
Loan Market Association;


 


“Loan” means a loan made or to be made
under the Facility or the principal amount outstanding for the time being of
that loan;


 


“Majority Lenders” means:


 


(a)                                if there are no Loans then
outstanding, a Lender or Lenders whose Commitments aggregate more than 66 and
2/3 per cent of the Total Commitments (or, if the Total Commitments have been
reduced to zero, aggregated more than 66 and 2/3 per cent of the Total Commitments
immediately prior to the reduction); or


 


(b)                               at any other time, a Lender or
Lenders whose participations in the Loans then outstanding aggregate more than
66 and 2/3 per cent of all the Loans then outstanding;


 


“Mandatory Cost” means the percentage rate
per annum calculated by the Agent, in accordance with Schedule 4 (Mandatory
Cost formulae) and which, for the avoidance of doubt, shall not include any
costs incurred in relation to Basel II;


 


“Margin” means, provided that no Event
of Default has occurred which is continuing:


 


(a)                                2.50 per cent per annum for
the period commencing on the Signing Date up to the delivery of the first
Compliance Certificate;


 


(b)                               with effect from the delivery
of the first Compliance Certificate, the Margin will be calculated by reference
to ratio of Consolidated Total Net Debt to Consolidated EBITDA, as set out at
any time other than during the Pro-Forma Relevant Period in the Consolidated
Financial Statements or in the Consolidated Quarterly Financial Statements (as
the case may be) or during the Pro-Forma Relevant Period as set out in the
Consolidated Pro-Forma Financial Statements or in the Consolidated Quarterly
Pro-Forma Financial Statements (as the case may be), in each case, most
recently delivered in accordance with Clause 19.1 (Financial Statements) of 


 


8

















 


this Agreement (excluding for the avoidance
of doubt the Consolidated Quarterly Financial Statements for the quarters
ending on or prior to 30 September 2009 (included)) as reflected in the
relevant Compliance Certificate and shall be the percentage per annum set out
opposite such range in the margin grid table below:


 


Margin Grid Table


 


	
  Ratio of Consolidated Total Net Debt to 

  Consolidated EBITDA

  	
   

  	
  Margin (per cent per 

  annum)

  	
   

  
	
  Lower than or equal to 1.5x

  	
   

  	
  1.75

  	
   

  
	
  Greater than 1.5x but lower than or equal
  to 2.0x

  	
   

  	
  2.00

  	
   

  
	
  Greater than 2.0x but lower than or equal
  to 2.5x

  	
   

  	
  2.25

  	
   

  
	
  Greater than 2.5x but lower than or equal
  to 3.0x

  	
   

  	
  2.50

  	
   

  
	
  Greater than 3.0x

  	
   

  	
  3.00

  	
   

  



 


(and any reduction or increase in the Margin pursuant to this paragraph
(b) shall take effect in relation to any Loan, five Business Days after
receipt by the Agent of the Compliance Certificate pursuant to Clause 19.2
(Compliance Certificate));


 


(c)                                if at any time an Event of
Default has occurred and is continuing the Margin shall be 3.00 per cent per
annum;


 


(d)                               the change to the Margin set
out in paragraph (c) above shall apply from and including the date on
which an Event of Default has occurred or come into existence until but
excluding the date on which such Event of Default is no longer continuing;


 


“Material Adverse Effect” means a
material adverse effect on:


 


(a)                                the business, or financial
condition of the Group taken as a whole;


 


(b)                               the ability of an Obligor to
perform its payment obligations under the Finance Documents; or


 


(c)                                the validity or enforceability
of the Finance Documents or the rights or remedies of any Finance Party under
the Finance Documents;


 


“Material Subsidiary” means, at any
time, a Subsidiary of the Borrower whose total assets or turnover (excluding
intra-Group items) then equal or exceed 5 per cent of the Consolidated Total
Assets or turnover of the Group. For this purpose:


 


(a)                                the total assets or turnover
of a Subsidiary of the Borrower will be determined from its financial
statements (consolidated if it has subsidiaries) upon which the latest audited
financial statements of the Group have been based;


 


(b)                               if a Subsidiary of the
Borrower becomes a member of the Group after the date on which the latest
Consolidated Financial Statements or the Consolidated Quarterly Financial
Statements (as the case may be) of the Group have been prepared, the total
assets or turnover of that Subsidiary will be determined from its latest
financial statements;


 


9

















 


(c)                                the Consolidated Total Assets
or turnover of the Group will be determined from the latest Consolidated
Financial Statements or Consolidated Quarterly Financial Statements (as the
case may be), adjusted on any Quarter Date (where appropriate) to reflect the
total assets or turnover of any company or business subsequently acquired or
disposed of; and


 


(d)                               if a Material Subsidiary
disposes of all or substantially all of its assets to another Subsidiary of the
Borrower, it will immediately cease to be a Material Subsidiary and the other
Subsidiary (if it is not already) will immediately become a Material
Subsidiary; the subsequent financial statements of those Subsidiaries and the
Group will be used to determine whether those Subsidiaries are Material
Subsidiaries or not.


 


If there is a dispute as to whether or not a company is a Material
Subsidiary, a certificate of the auditors of the Borrower will be, in the
absence of manifest error, conclusive;


 


“Month” means a period starting on one
day in a calendar month and ending on the numerically corresponding day in the
next calendar month, except that:


 


(a)                                if the numerically
corresponding day is not a Business Day, that period shall end on the next Business
Day in that calendar month in which that period is to end if there is one, or
if there is not, on the immediately preceding Business Day;


 


(b)                               if there is no numerically
corresponding day in the calendar month in which that period is to end, that period
shall end on the last Business Day in that calendar month.


 


The above rules will only apply to the last Month of any period;


 


“Multiemployer Plan” means a “multiemployer plan” (as defined in Section (3)(37) of
ERISA) contributed to for any employees of a U.S. Group Company or any ERISA
Affiliate;


 


“Obligor” means the Borrower or a
Guarantor;


 


“Original Financial Statements” means:


 


(a)                                in relation to the Borrower,
the audited Consolidated Financial Statements for its financial year ended 31 December 2008;


 


(b)                               in relation to Luxottica U.S.
Holdings Corp., its audited financial statements for its financial year ended
31 December 2008; and


 


(c)                                in relation to Luxottica
S.r.l., its financial statements for its financial year ended 31 December 2008;


 


“Participating Member State” means any
member state of the European Communities that adopts or has adopted the Euro as
its lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union;


 


“Party” means a party to this Agreement;


 


“PBGC” means the U.S. Pension Benefit
Guaranty Corporation, or any entity succeeding to all or any of its functions
under ERISA;


 


“Permitted Security”
means any of the Security listed in paragraph 21.3.3(i) to 21.3.3(vii) of
Clause 21.3 (Negative Pledge);


 


10

















 


“Pro-Forma Relevant Period” means the
period starting from the date on which an Acquisition is completed and ending
on the Business Day immediately preceding the Quarter Date falling not less
than 12 Months after the date on which that Acquisition is completed;


 


“Qualifying Lender” means, as at the
date of this Agreement or, in the case of an assignee or transferee under
Clause 23 (Changes to the Lenders), as at the date of such assignment or (as
the case may be) as at the date of the relevant Transfer Certificate:


 


(i)                              a
bank or financial institution that is a resident in Italy for Italian tax
purposes not acting for the purposes of this Agreement through a permanent
establishment (stabile organizzazione) located
outside of Italy; or


 


(ii)                           a
permanent establishment (stabile organizzazione)
in Italy of a bank or financial institution that is not resident in Italy for
tax purposes, for which any interest received under this Agreement is business
income (reddito di impresa) according to Articles 81 and 152, paragraph 1, of
the Presidential Decree no. 917 of 22 December 1986; or


 


(iii)                        a
Lender which: (a) is treated as a resident for tax purposes in a country
which has a double taxation treaty with Italy pursuant to which no withholding
on account of income tax is required to be made on any payments under this
Agreement, and (b) does not carry on a business in Italy through a
permanent establishment (stabile organizzazione)
with which that Lender’s participation in the Loan is effectively connected;


 


“Qualified Shareholder” means:


 


(a)                                any Del Vecchio Family Member;


 


(b)                               any company controlled or
jointly controlled (under the meaning of IAS 31) by a Del Vecchio Family
Member; or


 


(c)                                any trust or other similar
entity in which a Del Vecchio Family Member whether alone or together with one
or more other Del Vecchio Family Members, has all or substantially all of the
beneficial interests;


 


“Quarter Date” means each 31 March, 30
June, 30 September and 31 December;


 


“Quotation Day”
means the second TARGET Day before the first day of an Interest Period unless
market practice differs in the Relevant Interbank Market, in which case the
Quotation Day will be determined by the Agent in accordance with market
practice in the Relevant Interbank Market (and if quotations would normally be
given by leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days);


 


“Reference Banks” means the principal
offices of Mediobanca — Banca di Credito Finanziario S.p.A., Calyon S.A.,
Deutsche Bank S.p.A. and UniCredit Corporate Banking S.p.A.;


 


“Relevant Interbank Market” means the
European interbank market;


 


“Relevant Period” means each period of
12 months ending on the last day of the Borrower’s financial year and each
period of 12 months ending on the last day of each quarter of the Borrower’s
financial year;


 


11

















 


“Repeating Representations” means each
of the representations set out in Clauses 18.1 (Status) to 18.6 (Governing law
and enforcement) and Clause 18.9 (No Default) to Clause 18.22 (ERISA and
Multiemployer Plans) other than paragraph 18.9.2 (No Default), Clause 18.10 (No
misleading information) and paragraph 18.11.3 (Financial Statements);


 


“Restricted Party” means
any person listed:


 


(a)          in the Annex to the
Executive Order;


 


(b)                        on
the “Specially Designated Nationals and Blocked Persons” list maintained by the
OFAC; or


 


(c)          in any successor list
to either of the foregoing.


 


“Screen Rate”
has the meaning given to it in the definition of “EURIBOR”;


 


“Security” means a mortgage, charge,
pledge, lien or other security interest securing any obligation of any person
or any other agreement or arrangement having a similar effect;


 


“Selection Notice” means a notice
substantially in the form set out in Part 2 of Schedule 3 (Requests) given
in accordance with Clause 9 (Interest Periods);


 


“Signing Date” means the date of this
Agreement;


 


“Specified Time” means a time determined
in accordance with Schedule 9 (Timetables);


 


“Subsidiary” means in relation to any
company or corporation, a company or corporation:


 


(a)                                which is controlled, directly
or indirectly, by the first mentioned company or corporation;


 


(b)                               more than half the issued
share capital of which is beneficially owned, directly or indirectly by the
first mentioned company or corporation; or


 


(c)                                which is a Subsidiary of
another Subsidiary of the first mentioned company or corporation,


 


and for this purpose, a company or corporation shall be treated as
being controlled by another if that other company or corporation is able to
direct its affairs and/or to control the composition of its board of directors
or equivalent body;


 


“Super  Majority
Lenders” means:


 


(a)                                if there are no Loans then
outstanding, a Lender or Lenders whose Commitments aggregate more than 85 per
cent of the Total Commitments (or, if the Total Commitments have been reduced
to zero, aggregated more than 85 per cent of the Total Commitments immediately prior
to the reduction); or


 


(b)                               at any other time, a Lender or
Lenders whose participations in the Loans then outstanding aggregate more than
85 per cent of all the Loans then outstanding;


 


“Target” means any entity or group of
entities which is the objective of an Acquisition;


 


“Target Group” means any Target together
with its Subsidiaries from time to time;


 


“TARGET2” means Trans-European Automated
Real-time Gross Settlement Express Transfer payment system which utilises a
single shared platform and which was launched on 19 November 2007;


 


12

















 


“TARGET Day” means any day on which
TARGET2 is open for the settlement of payments in euro;


 


“Tax” means any tax, levy, impost, duty
or other charge or withholding of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same);


 


“Termination Date” means: the date
falling 3 (three) years from the first Utilisation Date, provided that if such
day is not a Business Day, it shall be the immediately preceding Business Day;


 


“Total Commitments” means the aggregate
of the Commitments being Euro 300,000,000 at the date of this Agreement;


 


“Transfer Certificate” means a
certificate substantially in the form set out in Schedule 5 (Form of
Transfer Certificate) or any other form agreed between the Agent and the
Borrower;


 


“Transfer Date” means, in relation to a
transfer, the later of:


 


(a)                                the proposed Transfer Date
specified in the Transfer Certificate; and


 


(b)                               the date on which the Agent
executes the Transfer Certificate;


 


“Unfunded Pension Liability” means the
excess of an Employee Plan’s benefit liabilities under Section 4001
(a)(16) of ERISA, over the current value of that plan’s assets, determined in accordance
with the assumptions used for funding the Employee Plan pursuant to Section 412
of the Code for the applicable plan year;


 


“Unpaid Sum” means any sum due and
payable but unpaid by an Obligor under the Finance Documents;


 


“US GAAP” means generally accepted
accounting principles in the United States of America;


 


“U.S. Group Company” means any member of
the Group incorporated in any State of the United States of America;


 


“Utilisation” means a utilisation of the
Facility;


 


“Utilisation Date” means the date of a
Utilisation, being the date on which the relevant Loan is to be made;


 


“Utilisation Request” means a notice
substantially in the form set out in Part 1 of Schedule 3 (Requests); and


 


“VAT” means the value added tax provided
for by Presidential Decree no. 633 of 26 October 1972 and any other tax of
a similar nature.


 


1.2                            Construction


 


1.2.1                   Unless
a contrary indication appears any reference in this Agreement to:


 


(i)                                  the “Agent”, any “Mandated Lead Arranger and
Bookrunner”, any Finance Party,
any “Lender”, any “Obligor”,
any “Party” or any other person shall be
construed so as to include its successors in title, permitted assigns and
permitted transferees;


 


13

















 


(ii)                               “assets” includes present and future properties, revenues and
rights of every description;


 


(iii)                            a “Finance Document” or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument as amended
or novated;


 


(iv)                           “indebtedness” includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money, whether present
or future, actual or contingent;


 


(v)                              a “person” includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or partnership
(whether or not having separate legal personality) of two or more of the
foregoing;


 


(vi)                           a “regulation” includes any regulation, rule, official
directive, request or guideline (whether or not having the force of law) of any
governmental, intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;


 


(vii)                        a
provision of law is a reference to that provision as amended or re-enacted; and


 


(viii)                     a
time of day is a reference to Milan time unless otherwise stated.


 


1.2.2                   Section,
Clause and Schedule headings are for ease of reference only.


 


1.2.3                   Unless
a contrary indication appears, a term used in any other Finance Document or in
any notice given under or in connection with any Finance Document has the same
meaning in that Finance Document or notice as in this Agreement.


 


1.2.4                   A
Default (other than an Event of Default) is “continuing”
if it has not been remedied or waived and an Event of Default is continuing if
it has not been waived.


 


1.3                            Currency
Symbols and Definitions


 


“Euro, €
or EUR” means the single currency of the
Participating Member States.


 


Section 2

The Facility


 


2                                      The
Facility


 


2.1                            The
Facility


 


Subject to the terms of this Agreement, the Lenders make available to
the Borrower a term loan facility in an aggregate amount equal to the Total
Commitments.


 


2.2                            Finance
Parties’ rights and obligations


 


2.2.1                   The
obligations of each Finance Party under the Finance Documents are several.
Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.


 


14

















 


2.2.2                   The
rights of each Finance Party under or in connection with the Finance Documents
are separate and independent rights and any debt arising under the Finance
Documents to a Finance Party from an Obligor shall be a separate and
independent debt.


 


2.2.3                   A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents.


 


3                                      Purpose


 


3.1                            Purpose


 


The Borrower shall apply all
amounts borrowed by it under the Facility in refinancing, also through
intercompany loans, the existing indebtedness of the Group (including
Subsidiaries incorporated outside of Italy ) and towards the general corporate
purposes of the Group. For avoidance of any doubt, no amounts borrowed under
the Facility shall be used for acquisition purposes.


 


3.2                            Monitoring


 


No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.


 


4                                      Conditions
of Utilisation


 


4.1                            Initial
conditions precedent


 


The Borrower may not deliver
a Utilisation Request unless the Agent has received all of the documents and
other evidence listed in Schedule 2 (Conditions Precedent to
initial Utilisation) in form and substance satisfactory to the Agent
acting reasonably. The Agent shall notify the Borrower and the Lenders promptly
upon being so satisfied.


 


4.2                            Further
conditions precedent


 


The Lenders will only be obliged to comply with Clause 5.4 (Lenders’
participation) if on the date of the Utilisation Request and on the proposed
Utilisation Date:


 


4.2.1                   no
Default is continuing or would result from the proposed Loan; and


 


4.2.2                   the
Repeating Representations to be made by each Obligor are true in all material
respects.


 


4.3                            Maximum
number of Loans


 


A Borrower may not deliver a
Utilisation Request if as a result of the proposed Utilisation more than 3
Loans would be outstanding.


 


15

















 


Section 3

Utilisation


 


5                                      Utilisation


 


5.1                            Delivery
of a Utilisation Request


 


The Borrower may utilise the Facility by delivery to the Agent of a
duly completed Utilisation Request not later than the Specified Time.


 


5.2                            Completion
of a Utilisation Request


 


5.2.1                   Each
Utilisation Request is irrevocable and will not be regarded as having been duly
completed unless:


 


(i)                                  the
proposed Utilisation Date is a Business Day within the Availability Period;


 


(ii)                               the
amount of the Utilisation comply with Clause 5.3 (Amount); and


 


(iii)                            the
proposed Interest Period complies with Clause 9 (Interest Periods).


 


5.2.2                   Only
one Loan may be requested in each Utilisation Request.


 


5.3                            Amount


 


The amount of the proposed Loan must be a minimum of Euro 50,000,000
or, if less, the Available Facility.


 


5.4                            Lenders’
participation


 


5.4.1                   If
the conditions set out in this Agreement have been met, each Lender shall make
its participation in each Loan available by the Utilisation Date through its
Facility Office.


 


5.4.2                   The
amount of each Lender’s participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the Loan.


 


Section 4

Repayment, Prepayment and Cancellation


 


6                                      Repayment


 


6.1                            Repayment
of the Loans


 


The Borrower shall repay the Loans made to it in full on the
Termination Date.


 


16

















 


7                                      Prepayment
and Cancellation


 


7.1                            Illegality


 


If, at any time, it is or it becomes unlawful in any applicable
jurisdiction for a Lender to perform any of its obligations as contemplated by
this Agreement or to fund or maintain its participation in any Loan and
provided that such unlawfulness cannot be resolved by the relevant Lender
transferring pursuant to Clause 35.3 (Replacement of a Lender) all its
interests, rights and obligations under this Agreement( in which case that
Lender shall transfer its Commitment and participation at the Borrower’
request):


 


7.1.1                   that
Lender shall promptly notify the Agent upon becoming aware of that event;


 


7.1.2                   upon
the Agent notifying the Borrower, the Commitment of that Lender will be
immediately cancelled; and


 


7.1.3                   the
Borrower shall repay that Lender’s participation in the Loans made to it on the
last day of the Interest Period for each Loan occurring after the Agent has
notified the Borrower or, if earlier, the date specified by the Lender in the
notice delivered to the Agent which shall not be earlier than the last date as
determined by applicable law or regulation for the repayment of any such Loan.


 


7.2                            Change
of control


 


7.2.1                   If
any person or group of persons (acting in concert) other than a Qualified
Shareholder gains the control of the Borrower (a “Control
Event”), the Borrower shall promptly, as soon it can do so without
breaching any applicable law or regulation or contract and subject always to
Clause 24 (Confidentiality), notify the Agent upon becoming aware of that
event.


 


7.2.2                   If a
Control Event has occurred and within 45 days following the earlier of the date
on which (i) the Agent receives the notice referred to in paragraph 7.2.1;
and (ii) the Agent becomes otherwise aware of the occurrence of a Control
Event, the Agent, so instructed by the Majority Lenders, declares that the
Total Commitments are cancelled and all outstanding Loans, together with all
other amounts accrued under the Finance Documents are immediately due and
payable by delivering a written notice to the Borrower to this effect, then all
outstanding Loans, together with accrued interest, Break Costs, if any, and all
other amounts accrued under the Finance Documents, shall become immediately due
and payable and the Borrower shall repay or prepay such Loans upon receipt of
the relevant notice.


 


7.2.3                   For
the purposes of this Clause 7.2 “control” shall
be construed in accordance with Article 2359 of the Italian Civil Code and
Article 93 of Legislative Decree No. 58 of 24 February 1998 (as
subsequently amended or supplemented).


 


7.3                            Voluntary
cancellation


 


Without penalty or cost, the Borrower may, if it gives the Agent not
less than 5 Business Days’ (or such shorter period as the Majority Lenders may
agree) prior notice, cancel the whole or any part (being a minimum amount of
Euro 10,000,000) of the Available Facility. Any cancellation under this Clause
7.3 shall reduce the Commitments rateably under the Facility.


 


17

















 


7.4                            Automatic
Cancellation


 


Following the lapse of the Availability Period, the whole Available
Facility shall automatically be cancelled.


 


7.5                            Voluntary
prepayment


 


7.5.1                   The
Borrower may, if it gives the Agent not less than 5 Business Days’ (or such
shorter period as the Majority Lenders may agree) prior notice and subject to
the payment of the Break Costs, if any, under Clause 7.7.2, prepay the whole or
any part of the Facility (but, if in part, being a minimum amount of Euro
10,000,000).


 


7.5.2                   Any
prepayment under this Clause 7.5 shall be applied against the participations of
the Lenders pro rata.


 


7.6                            Right
of repayment and cancellation in relation to a single Lender


 


7.6.1                   Without
prejudice and subject to the applicable provisions Clause 35.3 below, if:


 


(i)                                  any
sum payable to any Lender by an Obligor is required to be increased under
Clause 12.2 (Tax gross up); or


 


(ii)                               any
Lender claims indemnification from the Borrower under Clause 12.3 (Tax
indemnity) or Clause 13.1 (Increased costs),


 


the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent 5 Business Days prior
notice of cancellation of the Commitment of that Lender and its intention to
procure the repayment of that Lender’s participation in the Loans.


 


7.6.2                   Following
the lapse of the 5 Business Days period from receipt of a notice referred to in
paragraph 7.6.1 above, the Commitment of that Lender shall immediately be
reduced to zero.


 


7.6.3                   On
the last day of each Interest Period which ends after the Borrower has given
notice under paragraph 7.6.1 above (or, if earlier, the date specified by the
Borrower in that notice), the Borrower shall repay at cash and at par that
Lender’s participation in that Loan together with all accrued interest, Break
Costs, if any, and other amounts payable in relation thereto under the Finance
Documents.


 


7.7                            Restrictions


 


7.7.1                   Any
notice of cancellation or prepayment given by any Party under this Clause 7
shall be irrevocable and, unless a contrary indication appears in this
Agreement, shall specify the date or dates upon which the relevant cancellation
or prepayment is to be made and the amount of that cancellation or prepayment.


 


7.7.2                   Any
prepayment under this Agreement shall be made together with accrued interest on
the amount prepaid and, subject to any Break Costs (other than in the case of
prepayment under Clause 7.1 (Illegality) in respect of which no Break Costs
shall be payable), without premium or penalty.


 


7.7.3                   The
Borrower may not reborrow any part of the Facility which is prepaid.


 


7.7.4                   The
Borrower shall not repay or prepay all or any part of the Loans or cancel all
or any part of the Commitments except at the times and in the manner expressly
provided for in this Agreement.


 


18

















 


7.7.5                   No
amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.


 


7.7.6                   If
an Agent receives a notice under this Clause 7 it shall promptly forward a copy
of that notice to either the Borrower or the affected Lender, as appropriate.


 


Section 5

Costs of Utilisation


 


8                                      Interest


 


8.1                            Calculation
of interest


 


The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:


 


8.1.1                   Margin;


 


8.1.2                   EURIBOR;
and


 


8.1.3                   Mandatory
Cost, if any.


 


8.2                            Payment
of interest


 


The Borrower shall pay accrued interest on each Loan on the last day of
each Interest Period.


 


8.3                            Default
interest


 


8.3.1                   If
an Obligor fails to pay any amount (other than interest) payable by it under a
Finance Document on its due date, interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and after
judgment) at a rate which, subject to paragraph 8.3.2 below, is one per cent
per annum higher than the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Loan in the
currency of the overdue amount for successive Interest Periods, each of a
duration selected by the Agent (acting reasonably). Any interest accruing under
this Clause 8.3 shall be immediately payable by the Obligor on demand by an
Agent.


 


8.3.2                   If
any overdue amount consists of all or part of a Loan which became due on a day
which was not the last day of an Interest Period relating to that Loan:


 


(i)                                  the
first Interest Period for that overdue amount shall have a duration equal to
the unexpired portion of the current Interest Period relating to that Loan; and


 


(ii)                               the
rate of interest applying to the overdue amount during that first Interest
Period shall be one per cent per annum higher than the rate which would have
applied if the overdue amount had not become due.


 


8.3.3                   Default
interest (if unpaid) arising on an overdue amount will not be compounded with
the overdue amount at the end of each Interest Period and will remain
immediately due and payable.


 


19

















 


8.4                            Notification
of rates of interest


 


The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.


 


8.5                            Anti-usury
provisions


 


For the avoidance of doubt,
notwithstanding any other provision of the Finance Documents, if at any time
the interest rate stated to be payable under this Agreement would cause a
breach of Italian anti-usury laws, then the interest rate payable under this
Agreement shall be capped at the maximum amount permitted to be payable under
Italian anti-usury laws.


 


9                                      Interest
Periods


 


9.1                            Selection
of Interest Periods


 


9.1.1                   The
Borrower may select an Interest Period for a Loan in the Utilisation Request
for that Loan or (if the Loan has already been borrowed) in a Selection Notice.


 


9.1.2                   Each
Selection Notice is irrevocable and must be delivered to the Agent by the
Borrower not later than the Specified Time.


 


9.1.3                   If
the Borrower fails to deliver a Selection Notice to the Agent in accordance
with paragraph 9.1.2 above, the relevant Interest Period will be three Months.


 


9.1.4                   Subject
to this Clause 9, a Borrower may select an Interest Period of one, three or six
Months or any other period agreed between the Borrower and the Agent acting on
the instructions of all the Lenders.


 


9.1.5                   An
Interest Period for a Loan shall not extend beyond the Termination Date
applicable to the Facility.


 


9.1.6                   Each
Interest Period for a Loan shall start on the Utilisation Date or (if already
made) on the last day of the relevant preceding Interest Period.


 


9.2                            Non-Business
Days


 


If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if there
is not).


 


9.3                            Consolidation


 


If two or more Interest Periods end on the same date, the relevant
Loans will, unless the Borrower specifies to the contrary in the Selection
Notice for the next Interest Period, be consolidated into, and treated as, a
single Loan on the last day of the Interest Period.


 


10                               Changes
to the Calculation of Interest


 


10.1                     Absence
of quotations


 


Subject to Clause 10.2 (Market disruption) if EURIBOR is to be
determined by reference to the Reference Banks but a Reference Bank does not
supply a quotation by the Specified Time on the Quotation Day, the applicable
EURIBOR shall be determined on the basis of the quotations of the remaining
Reference Banks.


 


20
















 


10.2                     Market
disruption


 


10.2.1            If a
Market Disruption Event occurs in relation to a Loan for any Interest Period,
then the rate of interest on each Lender’s share of that Loan for the Interest
Period shall be the rate per annum which is the sum of:


 


(i)                                  the
Margin;


 


(ii)                               the
rate notified to the Agent by that Lender as soon as practicable and in any
event before interest is due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per annum the cost to that Lender
of funding its participation in that Loan from whatever source it may
reasonably select; and


 


(iii)                            the
Mandatory Cost, if any, applicable to that Lender’s participation in the Loan.


 


10.2.2            In
this Agreement “Market Disruption Event” means:


 


(i)                                  at
or about noon on the Quotation Day for the relevant Interest Period the Screen
Rate is not available and none or only one of the Reference Banks supplies a
rate to the Agent to determine EURIBOR for the relevant currency and Interest
Period; or


 


(ii)                               before
close of business in Milan on the Quotation Day for the relevant Interest
Period, the Agent receives notifications from Lenders whose participations in a
Loan exceed 30 per cent of that Loan that the cost to them of funding its share
in that Loan deposits in the Relevant Interbank Market is in excess of EURIBOR
for the relevant currency and term.


 


10.3                     Alternative
basis of interest or funding


 


10.3.1            If a
Market Disruption Event occurs and the Agent or the Borrower so requires, the
Agent and the Borrower shall enter into negotiations (for a period of not more
than 30 days) with a view to agreeing a substitute basis for determining the
rate of interest.


 


10.3.2            Any
alternative basis agreed pursuant to paragraph 10.3.1 above shall, with the
prior consent of all the Lenders and the Borrower, be binding on all Parties.


 


10.4                     Break
Costs


 


10.4.1            Subject
to Clause 7.7.2, each Borrower shall, within five Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs attributable to all or
any part of a Loan or Unpaid Sum being paid by that Borrower on a day other
than the last day of an Interest Period for that Loan or Unpaid Sum.


 


10.4.2            Each
Lender shall, as soon as reasonably practicable after a demand by the Agent,
provide a certificate confirming the amount of its Break Costs for any Interest
Period in which they accrue.


 


21

















 


11                                Fees


 


11.1                      Facility
fee


 


The Borrower shall pay to the Mandated Lead Arrangers and the
Bookrunners a facility fee in the amount and at the times agreed in the
Facility Fee Letter.


 


11.2                      Agency
fee


 


The Borrower shall pay to the Agent (for its own account) an agency fee
in the amount and at the times agreed in the Agency Fee Letter.


 


22

















 


Section 6

Additional Payment Obligations


 


12                               Tax
Gross-up and Indemnities


 


12.1                     Definitions


 


12.1.1            In
this Agreement:


 


“Protected Party” means a Finance Party
which is or will be subject to any liability, or required to make any payment,
for or on account of Tax in relation to a sum received or receivable (or any
sum deemed for the purposes of Tax to be received or receivable) under a
Finance Document.


 


“Tax Credit” means a credit against,
relief or remission for, or repayment of any Tax.


 


“Tax Deduction” means a deduction or
withholding for or on account of Tax from a payment under a Finance Document.


 


“Tax Payment” means either the increase
in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax
gross-up) or a payment under Clause 12.3 (Tax indemnity).


 


“Treaty Lender” means a Lender,
described in paragraph (iii) of the definition of Qualifying Lender.


 


12.1.2            Unless
a contrary indication appears, in this Clause a reference to “determines” or “determined”
means a determination made in the absolute discretion of the person making the
determination acting reasonably and in good faith.


 


12.2                     Tax
gross-up


 


12.2.1            Each
Obligor shall make all payments to be made by it under the Agreement without
any Tax Deduction, unless a Tax Deduction is required by law.


 


12.2.2            The
Borrower shall promptly upon becoming aware that an Obligor must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the
Agent on becoming so aware in respect of a payment payable to that Lender. If
the Agent receives such notification from a Lender it shall notify the Borrower
and that Obligor.


 


12.2.3            Except
as provided below in paragraphs 12.2.4 and 12.2.7, if a Tax Deduction for or on
account of any Tax is required by any law to be made by an Obligor or the
Agent, the amount of the payment due from that Obligor shall be increased to an
amount which (after making such Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required.


 


12.2.4            An
Obligor is not required to make an increased payment to a Lender under
paragraph 12.2.3 above for a Tax Deduction from any payment under this
Agreement, if on the date on which the payment falls due:


 


23

















 


(i)                                  the
payment could have been made to the relevant Lender without a Tax Deduction if
it was a Qualifying Lender, but on that date that Lender is not or has ceased
to be a Qualifying Lender other than (a) as a result of any change after
the date it became a Lender under this Agreement in (or in the interpretation,
administration, or application) of any law, treaty, or any published practice
or concession of any relevant taxing authority; or (b) as a result of the
action or omission to act by an Obligor including but not limited to the
failure to deliver any relevant tax certificates; or


 


(ii)                               the
relevant Lender is a Treaty Lender and the Obligor making the payment is able
to demonstrate that the payment could have been made to the Lender without the
Tax Deduction had that Lender complied with its obligations under paragraph
12.2.8 below.


 


12.2.5            If
an Obligor is required to make a Tax Deduction, that Obligor shall make that
Tax Deduction and any payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required by law.


 


12.2.6            Within
30 days of making either a Tax Deduction or any payment required in connection
with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to
the Agent for the Finance Party entitled to the payment evidence reasonably
satisfactory to that Finance Party that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing authority.


 


12.2.7            If a
Tax Deduction is required by law to be made by an Obligor or the Agent and such
Tax Deduction results from a transfer by a Lender of its interest in a Facility
or arises on account of Tax under legislation in force on the date of this
Agreement and the Tax Deduction would have been avoided if the Lender had
complied with its obligations to complete any procedural formalities necessary
for that Obligor to obtain authorisation to make that payment without a Tax Deduction,
an Obligor shall not be obligated to pay any additional amounts in respect of
any such Tax Deduction pursuant to paragraph 12.2.3.


 


12.2.8            A
Treaty Lender and each Obligor which makes a payment to which that Treaty
Lender is entitled shall co-operate in completing any procedural formalities
necessary for that Obligor to obtain authorisation to make that payment without
a Tax Deduction.


 


12.2.9            Each
Lender confirms to the Borrower that at the date hereof or, if later, the date
it becomes a Lender hereunder, it is a Qualifying Lender and hereby agrees that
it shall promptly notify the Obligors and the relevant Agent if at any time
from the date hereof it ceases to be a Qualifying Lender.


 


12.3                     Tax
indemnity


 


12.3.1            The
Borrower shall (within five Business Days of demand by the Agent) pay to a
Protected Party an amount equal to the loss, liability or cost which that
Protected Party determines (provided that such Protected Party provides the
Borrower with written evidence of the loss, liability or cost so determined)
will be or has been (directly or indirectly) suffered for or on account of Tax
by that Protected Party in respect of a Finance Document other than any such
loss, liability or cost that


 


24

















 


results from a
transfer by a Lender of its interest in the Facilities or that arises on
account of Tax under legislation in force on the date of this Agreement.


 


12.3.2            Paragraph
12.3.1 above shall not apply:


 


(i)                                  with
respect to any Tax assessed on a Finance Party:


 


(a)                        under
the law of the jurisdiction in which that Finance Party is incorporated or, if
different, the jurisdiction (or jurisdictions) in which that Finance Party is
treated as resident for tax purposes; or


 


(b)                       under
the law of the jurisdiction in which that Finance Party’s Facility Office is
located in respect of amounts received or receivable in that jurisdiction,


 


if that Tax is imposed on or calculated by reference to the net income
received or receivable or attributable to an equivalent aggregate income tax
base as defined in the relevant income tax provisions (but not any sum deemed
to be received or receivable including any amount treated as income but not
actually received by the Finance Party, such as a Tax Deduction) by that
Finance Party; or


 


(ii)                               to
the extent a loss, liability or cost:


 


(a)                        is
compensated for by an increased payment under Clause 12.2 (Tax gross-up); or


 


(b)                       would
have been compensated for by an increased payment under Clause 12.2 (Tax
gross-up) but was not so compensated solely because one of the exclusions in
paragraph 12.2.4 or 12.2.7 of Clause 12.2 (Tax gross-up) applied.


 


12.3.3            A
Protected Party making, or intending to make a claim under paragraph 12.3.2(ii)(a) above
shall promptly notify the Agent of the event which will give, or has given,
rise to the claim, following which the Agent shall promptly notify the
Borrower.


 


12.3.4            A
Protected Party shall, on receiving a payment from an Obligor under this
Clause, notify the Agent.


 


12.4                     Tax
Credit


 


If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:


 


12.4.1            a
Tax Credit is attributable either to an increased payment of which that Tax
Payment forms part, or to that Tax Payment; and


 


12.4.2            that
Finance Party has obtained, utilised and retained that Tax Credit,


 


the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required to be
made by the Obligor.


 


12.5                     Stamp
taxes


 


The Borrower shall pay and, within five Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that Finance
Party incurs in relation to all stamp


 


25

















 


duty, registration and other similar Taxes payable in respect of any
Finance Document (excluding for the avoidance of doubt, any stamp registration
and other similar taxes arising or incurred in connection with a transfer,
assignment or novation of any Facility or part thereof, unless such transfer,
assignment or novation is entered into at the request of an Obligor).


 


12.6                     Value
added tax


 


12.6.1            All
consideration expressed to be payable under a Finance Document by any Party to
a Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable on any supply made by any Finance Party to any Party in connection
with a Finance Document, that Party shall pay to the Finance Party (in addition
to and at the same time as paying the consideration) an amount equal to the
amount of the VAT.


 


12.6.2            Where
a Finance Document requires any Party to reimburse a Finance Party for any
costs or expenses, that Party shall also at the same time pay and indemnify the
Finance Party against all VAT incurred by the Finance Party in respect of the
costs or expenses to the extent that the Finance Party reasonably determines
that it is not entitled to credit or repayment of the VAT.


 


13                               Increased
Costs


 


13.1                     Increased
costs


 


13.1.1            Subject
to Clause 13.3 (Exceptions to increased costs) the Borrower shall, within five
Business Days of a demand by the Agent, pay for the account of a Finance Party
the amount of any Increased Costs incurred by that Finance Party or any of its
Affiliates as a result of (i) the introduction of or any change in (or in
the interpretation, administration or application of) any law or regulation or (ii) compliance
with any law or regulation made after the date of this Agreement.


 


13.1.2            In
this Agreement “Increased Costs” means:


 


(i)                                  a
reduction in the rate of return from the Facility or on a Finance Party’s (or
its Affiliate’s) overall capital;


 


(ii)                               an
additional or increased cost; or


 


(iii)                            a
reduction of any amount due and payable under any Finance Document,


 


which is reasonably incurred or suffered and documented by a Finance
Party or any of its Affiliates to the extent that it is attributable to that
Finance Party having entered into its Commitment or funding or performing its
obligations under any Finance Document.


 


13.2                     Increased
cost claims


 


13.2.1            A
Finance Party intending to make a claim pursuant to Clause 13.1 (Increased
costs) shall notify the Agent of the event giving rise to the claim, following
which the Agent shall promptly notify the Borrower.


 


13.2.2            Each
Finance Party shall, as soon as practicable after a demand by the Agent,
provide a certificate confirming the amount of its Increased Costs.


 


26

















 


13.3                     Exceptions
to increased costs


 


13.3.1            Clause
13.1 (Increased costs) does not apply to the extent any Increased Cost is:


 


(i)                                  attributable
to a Tax Deduction required by law to be made by an Obligor;


 


(ii)                               attributable
to implementation or application of a compliance with International Convergence
of Capital Measurement and Capital Standards, a Revised Framework” published by
the Basel Committee on Banking Supervision in June 2004 in the form
existing on the date of this Agreement (“Basel II”) or
any other law or regulation which implements Basel II (whether such
implementation, application or compliance is by a government, regulator,
finance party or any of its affiliates);


 


(iii)                            compensated
for under another Clause (or would have been but for an exception to that
Clause);


 


(iv)                           attributable
to any breach by any Finance Party or its Affiliates of any law or regulation;
or


 


(v)                              arising
from or as a consequence of any transfer or sub-participation of a Lender’s
interest in the Facility.


 


13.3.2            In
this Clause, a reference to a “Tax Deduction”
has the same meaning given to the term in Clause 12.1 (Definitions).


 


14                               Other
Indemnities


 


14.1                     Currency
indemnity


 


14.1.1            If
any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another
currency (the “Second Currency”) for the purpose
of:


 


(i)                                  making
or filing a claim or proof against that Obligor; or


 


(ii)                               obtaining
or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,


 


that Obligor shall as an independent obligation, within five Business
Days of demand, indemnify each Finance Party to whom that Sum is due against
any cost, loss or liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and (B) the rate
or rates of exchange available to that person at the time of its receipt of
that Sum.


 


14.1.2            Each
Obligor waives any right it may have in any jurisdiction to pay any amount
under the Finance Documents in a currency or currency unit other than that in
which it is expressed to be payable.


 


14.2                     Other
indemnities


 


The Borrower shall (or shall procure that an Obligor will), within five
Business Days of demand, indemnify each Finance Party against any cost, loss or
liability incurred by that Finance Party as a result of:


 


27

















 


14.2.1            the
occurrence of any Event of Default;


 


14.2.2            a
failure by an Obligor to pay any amount due under a Finance Document on its due
date, including without limitation, any cost, loss or liability arising as a
result of Clause 28 (Sharing among the Finance Parties);


 


14.2.3            funding,
or making arrangements to fund, its participation in a Loan requested by a
Borrower in a Utilisation Request but not made by reason of the operation of
any one or more of the provisions of this Agreement (other than by reason of
default or negligence by that Finance Party alone); or


 


14.2.4            a
Loan (or part of a Loan) not being prepaid in accordance with a notice of
prepayment given by a Borrower.


 


14.3                     Indemnity
to the Agent


 


The Borrower shall promptly indemnify the Agent against any cost, loss
or liability incurred by the Agent (acting reasonably) as a result of:


 


14.3.1            investigating
any event which it reasonably believes is a Default; or


 


14.3.2            acting
or relying on any notice, request or instruction which it reasonably believes
to be genuine, correct and appropriately authorised.


 


15                               Mitigation
by the Lenders


 


15.1                     Mitigation


 


15.1.1            Each
Finance Party shall, in consultation with the Borrower, take all reasonable
steps to mitigate any circumstances which arise and which would result in any
amount becoming payable under or pursuant to, or cancelled pursuant to, any of
Clause 7.1 (Illegality), Clause 12 (Tax gross-up and indemnities), Clause 13
(Increased costs) or paragraph 3 of Schedule 4 (Mandatory Cost formulae)
including (but not limited to) transferring its rights and obligations under
the Finance Documents to another Affiliate or Facility Office.


 


15.1.2            Paragraph
15.1.1 above does not in any way limit the obligations of any Obligor under the
Finance Documents.


 


15.2                     Limitation
of liability


 


15.2.1            The
Borrower shall indemnify each Finance Party for all costs and expenses
reasonably incurred and documented by that Finance Party as a result of steps
taken by it under Clause 15.1 (Mitigation).


 


15.2.2            A
Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to do so might be
prejudicial to it.


 


16                               Costs
and Expenses


 


16.1                     Amendment
costs


 


If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 29.9 (Change of currency), the
Borrower shall, within five Business Days of demand, reimburse the Agent for
the amount of all costs and expenses


 


28

















 


(including pre agreed legal fees) reasonably incurred and documented by
the Agent in responding to, evaluating, negotiating or complying with that
request or requirement.


 


16.2                     Enforcement
costs


 


The Borrower shall, within five Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees and
any registration taxes) incurred and documented by that Finance Party in
connection with the enforcement of, or the preservation of any rights under,
any Finance Document.


 


29

















 


Section 7

Guarantee


 


17                               Guarantee
and Indemnity


 


17.1                     Guarantee
and indemnity


 


Each Guarantor irrevocably and unconditionally (in via autonoma ed ogni eccezione rimossa) jointly and severally:


 


17.1.1            guarantees
to each Finance Party punctual performance by the Borrower of all the Borrower’s
obligations under the Finance Documents;


 


17.1.2            undertakes
with each Finance Party that whenever the Borrower does not pay any amount when
due under or in connection with any Finance Document, it shall within five
Business Days of receiving a demand pay that amount as if it was the principal
obligor; and


 


17.1.3            indemnifies
each Finance Party within five Business Days of receiving a demand  against any cost, loss or liability
reasonably incurred or suffered and documented by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid or illegal.
The amount of the cost, loss or liability shall be equal to the amount which
that Finance Party would otherwise have been entitled to recover.


 


17.2                     Continuing
guarantee


 


This guarantee is a continuing guarantee and will extend to the
ultimate balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.


 


17.3                     Reinstatement


 


If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for those
obligations or otherwise) is avoided or reduced as a result of insolvency or
any similar event:


 


17.3.1            the
liability of each Obligor shall continue as if the payment, discharge,
avoidance or reduction had not occurred; and


 


17.3.2            each
Finance Party shall be entitled to recover the value or amount of that security
or payment from each Obligor, as if the payment, discharge, avoidance or
reduction had not occurred.


 


17.4                     Waiver
of defences


 


To the greatest extent permitted by applicable mandatory law
provisions, the obligations of each Guarantor under this Clause 17 will not be
affected by any act, omission, matter or thing which, but for this Clause 17,
would reduce, release or prejudice any of its obligations under this Clause 17
(without limitation and whether or not known to it or any Finance Party)
including:


 


17.4.1            any
time, waiver or consent granted to, or composition with, any Obligor or other
person;


 


30

















 


17.4.2            the
release of any other Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the Group;


 


17.4.3            the
taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over
assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;


 


17.4.4            any
incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of an Obligor or any other person;


 


17.4.5            any
amendment (however fundamental) or replacement of a Finance Document or any
other document or security;


 


17.4.6            unenforceability,
illegality or invalidity of any obligation of any person under any Finance
Document or any other document or security;


 


17.4.7            any
circumstances set out in Articles 1939, 1945, 1953, 1955, 1956 and 1957 of the
Italian Civil Code; or


 


17.4.8            any
insolvency or similar proceedings.


 


17.5                     Immediate
recourse


 


Subject to Clause 17.6 (Requirement of notice), each Guarantor waives
any right it may have of first requiring any Finance Party (or any trustee or
agent on its behalf) to proceed against or enforce any other rights or security
or claim payment from any person before claiming from that Guarantor under this
Clause 17. This waiver applies irrespective of any law or any provision of a
Finance Document to the contrary.


 


17.6                     Requirement
of notice


 


A Finance Party may not make any claim against a Guarantor unless such
Finance Party has first delivered a written notice to the Borrower notifying it
of its failure to perform its payment obligations under the Finance Documents.


 


17.7                     Appropriations


 


Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid in full,
each Finance Party (or any trustee or agent on its behalf) may:


 


17.7.1            refrain
from applying or enforcing any other moneys, security or rights held or
received by that Finance Party (or any trustee or agent on its behalf) in
respect of those amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and


 


17.7.2            hold
in an interest-bearing suspense account any moneys received from any Guarantor
or on account of any Guarantor’s liability under this Clause 17.


 


17.8                     Deferral
of Guarantors’ rights


 


Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid in full
and unless the Agent


 


31

















 


otherwise directs, no Guarantor will exercise any rights which it may
have by reason of performance by it of its obligations under the Finance
Documents:


 


17.8.1            to
be indemnified by an Obligor;


 


17.8.2            to
claim any contribution from any other Guarantor of any Obligor’s obligations
under the Finance Documents; and/or


 


17.8.3            to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Finance Parties under the Finance Documents or
of any other guarantee or security taken pursuant to, or in connection with,
the Finance Documents by any Finance Party.


 


17.9                     Additional
security


 


This guarantee is in addition to and is not in any way prejudiced by
any other guarantee or security now or subsequently held by any Finance Party.


 


17.10              Limitations


 


17.10.1    Notwithstanding anything to the contrary
contained herein or in any other Finance Document, the parties hereto agree
that:


 


(i)                                  the
obligations of Luxottica S.r.l. under this Clause 17 (Guarantee and Indemnity)
shall not exceed at any time in aggregate the lower between (i) the amount
corresponding to its Net Worth (as defined below) as calculated at the date of
occurrence of the circumstance which triggered the enforceability of the
relevant obligations on the basis of its most recent audited annual financial
statements and (ii) the Net Worth of Luxottica S.r.l. resulting from its
Original Financial Statements equal to Euro 377,450,608;


 


(ii)                               the
obligations of Luxottica U.S. Holdings Corp.’s and any other Additional
Guarantor incorporated in the USA (in such capacity a “US Guarantor”)
under this Clause 17 (Guarantee and Indemnity) shall be limited at any time to
an amount not to exceed in aggregate as of any date of determination the
greater of:


 


(a)                        the
net amount of all Loans and other extensions of credit advanced under the
Finance Documents which are indirectly re-loaned or otherwise transferred to,
or incurred for the benefit of, that US Guarantor, plus interest thereon at the
applicable rate specified in this Agreement; and


 


(b)                       the
amount that could be claimed by the Agent and the Lenders from that US
Guarantor under this Guarantee without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under
any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law after taking into account,
among other things, the US Guarantor’s right of contribution and
indemnification from each other Guarantor under Clause 17.10.2 below.


 


17.10.2     To
the extent that any Guarantor shall make a payment under this Guarantee (a “Guarantor Payment”) of all or any obligations of the
Borrower (“Guaranteed Obligations”) that,
taking into account all other Guarantor Payments then


 


32

















 


previously or concurrently made by the other Guarantors, exceeds the
amount that such Guarantor would otherwise have paid if each Guarantor had paid
the aggregate Guaranteed Obligations satisfied by such Guarantor Payment in the
same proportion that such Guarantor’s “Allocable Amount” (as defined below) (in
effect immediately prior to such Guarantor Payment) bore to the aggregate
Allocable Amounts of all of Guarantors in effect immediately prior to the
making of such Guarantor Payment, then, following indefeasible payment in full
in cash of the Guaranteed Obligations and termination of the Commitments, such
Guarantor shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, each of the other Guarantors for the
amount of such excess, pro rata based upon their respective Allocable Amounts
in effect immediately prior to such Guarantor Payment.


 


As of any date of determination, the “Allocable
Amount” of any Guarantor shall be equal to the maximum amount of the
claim that could then be recovered from such Guarantor under this Guarantee
without rendering such claim voidable or avoidable under Section 548 of
Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or common law of the jurisdiction of such Guarantor.


 


This paragraph 17.10.2 is intended only to define the relative rights
of Guarantors and nothing set forth in this paragraph 17.10.2 is intended to or
shall impair the obligations of Guarantors, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with
the terms of this Guarantee.


 


The rights of the parties under this paragraph 17.10.2 shall be
exercisable upon the full and indefeasible payment of the Guaranteed
Obligations and the termination of the Agreement and the other Finance
Documents.


 


The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of any Guarantor to which
such contribution and indemnification is owing.


 


“Net Worth” means the total value of the
“Patrimonio Netto” of the Guarantor
pursuant to the definition of Article 2424 of the Italian Civil Code.


 


17.11               Additional
Guarantors


 


17.11.1      Subject
to compliance with the provisions of Clause 19.7 (“Know your
customer” checks and other regulatory requirements”), the Borrower
may request that any of its Subsidiaries become an Additional Guarantor. That
Subsidiary shall become an Additional Guarantor if:


 


(i)                                  the
Borrower delivers to the Agent a duly completed and executed Accession Letter;
and


 


(ii)                               the
Agent has received all of the documents and other evidence listed in Part 1
of Schedule 12 (Additional Guarantors) in relation to that Additional
Guarantor, each in form and substance satisfactory to the Agent (acting reasonably
and in good faith).


 


17.11.2      The
Agent shall notify the Borrower and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it but acting
reasonably


 


33

















 


and in good faith) all the documents and other evidence listed in Part 1
of Schedule 12 (Additional Guarantors).


 


17.11.3      Delivery
of an Accession Letter constitutes confirmation by the relevant Subsidiary that
the Repeating Representations are true and correct in relation to it as at the
date of delivery as if made by reference to the facts and circumstances then
existing.


 


34
















 


Section 8

Representations, Undertakings and Events of Default


 


18                               Representations


 


Other than expressly provided to the contrary in this Clause 18
(Representations), each Obligor makes the representations and warranties set
out in this Clause 18 to each Finance Party on the date of this Agreement.


 


18.1                     Status


 


18.1.1            It
is a corporation, duly incorporated and validly existing under the law of its
jurisdiction of incorporation subject to Clause 21.7 (Merger).


 


18.1.2            It
and each of its Material Subsidiaries has the power to own its assets and carry
on its business as it is being conducted save to the extent otherwise permitted
by the terms of this Agreement.


 


18.2                     Binding
obligations


 


The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law as at the date of this Agreement
limiting its obligations which are specifically referred to in any legal
opinion delivered pursuant to Clause 4 (Conditions of Utilisation), legal,
valid, binding and enforceable obligations.


 


18.3                     Non-conflict
with other obligations


 


The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not conflict with:


 


18.3.1            any
law or regulation applicable to it;


 


18.3.2            its
or any of its Subsidiaries’ constitutional documents; or


 


18.3.3            any
agreement or instrument binding upon it or any of its Subsidiaries or any of
its or any of its Subsidiaries’ assets in any material respect.


 


18.4                     Power
and authority


 


It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of, the
Finance Documents to which it is a party and the transactions contemplated by
those Finance Documents.


 


18.5                     Validity
and admissibility in evidence


 


All Authorisations required:


 


18.5.1            to
enable it lawfully to enter into, exercise its rights and comply with its
obligations in the Finance Documents to which it is a party; and


 


18.5.2            to
make the Finance Documents to which it is a party admissible in evidence in its
jurisdiction of incorporation,


 


have been obtained or effected and are in full force and effect.


 


35

















 


18.6                     Governing
law and enforcement


 


18.6.1            The
choice of Italian law as the governing law of the Finance Documents will be
recognised and enforced in its jurisdiction of incorporation; and


 


18.6.2            any
judgment obtained in Italy in relation to a Finance Document will be recognised
and enforced in its jurisdiction of incorporation,


 


in each case subject to any general principles of law specifically
referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of
Utilisation).


 


18.7                     Deduction
of Tax


 


It is not required to make any deduction under the Italian tax law for
or on account of Tax from any payment it may make under any Finance Document to
the Finance Parties which are Qualifying Lenders, provided that each such
Finance Party that is or becomes eligible under any taxation treaty for a
withholding tax exemption takes any action required to be taken under the
relevant laws or regulations to benefit from such withholding tax exemption.


 


18.8                     No
filing or stamp taxes


 


Under the laws of its jurisdiction of incorporation, it is not
necessary that this Agreement or any of the Finance Documents be filed,
recorded or enrolled with any court or other authority in such jurisdiction or
that any stamp, registration or similar tax be paid on or in relation to this
Agreement or the Finance Documents or the transactions contemplated by the
Finance Documents save for:


 


18.8.1            if
this Agreement or a Finance Document is enforced in Italy either by way of a
direct court judgment or an exequatur of a judgment rendered outside Italy, the
following taxes may become payable:


 


(i)                                  a
registration tax at a rate not exceeding 3 per cent on any amount awarded under
the judgment; and


 


(ii)                               a
further registration tax at a rate of up to 3 per cent on any amount
outstanding under this Agreement or a Finance Document if the judgment refers
to this Agreement or such Finance Document provided that it is entered into
between the same parties to which the judgment is rendered and this Agreement
or such Finance Document has not been previously registered;


 


18.8.2            if
this Agreement or any Finance Document is filed with any public body or any
court in connection with the performance of any administrative functions (caso d’uso) in Italy, registration tax may become payable in
relation to this Agreement or any Finance Document which has not been previously
registered or the documentary taxes payable in respect of which have not been
franked by the payment of imposta sostitutiva
in relation to this Agreement, at a rate up to 3 per cent on any amount
outstanding thereunder;


 


18.8.3            if
this Agreement or any Finance Document is filed with any public body or any
court in connection with the performance of any administrative functions (caso d’uso) in Italy, stamp duties will become payable at a
nominal rate (currently €10.64 per foolscap sheet), in respect of any Finance
Document the documentary taxes


 


36

















 


payable in respect of which
have not been franked by the payment of imposta sostitutiva
in relation to this Agreement; and


 


18.8.4            any
registration or filing required to be made with the US Securities and Exchange
Commission, Consob or any other regulatory authority.


 


18.9                     No
default


 


18.9.1            No
Event of Default is continuing or would reasonably be expected to result from
the making of any Utilisation.


 


18.9.2            No
other event or circumstance is outstanding which constitutes a default under
any other agreement or instrument which is binding on it or any of its
Subsidiaries or to which its assets or the assets of any of its Subsidiaries
are subject which is reasonably likely to have a Material Adverse Effect.


 


18.10              No
misleading information


 


18.10.1     Any
factual written information supplied by any member of the Group pursuant to the
terms of this Agreement (the “Information”)
is true and accurate in all material respects as at the date it is provided or
as at the date (if any) at which it is stated.


 


18.10.2     To
the best of its knowledge and belief, nothing has occurred or been omitted from
the Information which would result in the Information being untrue or
misleading in any material respect.


 


18.10.3     Any
financial projections contained in the Information have been prepared in good
faith on the basis of recent historical information and on the basis of
assumptions believed to be reasonable at the time such financial projections
were prepared.


 


18.10.4     The
representations and warranties in this Clause 18.10 are made as and when the
relevant information is provided.


 


18.11               Financial
statements


 


18.11.1      The
most recent Consolidated Financial Statements delivered to the Agent was
prepared in accordance with GAAP consistently applied and fairly represents the
consolidated financial condition and operations of the Group during the
relevant financial year.


 


18.11.2      The
most recent Consolidated Quarterly Financial Statements delivered to the Agent
was prepared in accordance with GAAP consistently applied and fairly represents
the consolidated financial condition and operations of the Group during the
relevant quarter of the financial year.


 


18.11.3      There
has been no material adverse change in the business or consolidated financial
condition of the Group since the date of the Original Financial Statements
which would affect the Borrower’ ability to perform their payment obligations
under the Finance Documents.


 


18.12              Pari
passu ranking


 


Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by law
applying to companies generally.


 


37

















 


18.13              No
proceedings pending or threatened


 


No litigation, arbitration, investigation or administrative proceedings
of or before any court, arbitral body or agency have (to the best of its
knowledge and belief) been started or threatened against it or any of its
Subsidiaries which are reasonably likely to be adversely determined and, if
adversely determined, are reasonably likely to have a Material Adverse Effect.


 


18.14              Environmental
matters


 


18.14.1     Each
member of the Group has performed and observed in all material respects all
Environmental Laws, Environmental Permits and all other material covenants, conditions,
restrictions or agreements directly or indirectly concerned with any
contamination, pollution or waste or the release or discharge of any toxic or
hazardous substance in connection with any real property which is or was at any
time owned, leased or occupied by any member of the Group or on which any
member of the Group has conducted any activity, in each case where failure to
do so is reasonably likely to have a Material Adverse Effect.


 


18.14.2     No
Environmental Claim has been commenced or (to the best of its knowledge and
belief) is threatened against any member of the Group which is reasonably
likely to be adversely determined and if so determined is reasonably likely to
have a Material Adverse Effect.


 


18.15              Taxation


 


18.15.1     It
has duly and punctually paid and discharged all Taxes imposed upon it or its
assets within the time period allowed without incurring penalties where failure
to do so is reasonably likely to have a Material Adverse Effect (save to the
extent that (i) payment is being contested in good faith, and (ii) payment
can be lawfully withheld).


 


18.15.2     It
is not materially overdue in the filing of any Tax returns when failure to do
so is reasonably likely to have a Material Adverse Effect.


 


18.15.3     No
claims are being or are reasonably likely to be assessed against it with
respect to Taxes which are reasonably likely to be determined against it and,
if so determined, are reasonably likely to have a Material Adverse Effect.


 


18.16              Intellectual
Property


 


It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of the Group’s Intellectual Property which could
reasonably be expected to have a Material Adverse Effect.


 


18.17              Security


 


Save for Permitted Security, no Security exists over all or any of the assets
of any member of the Group.


 


18.18              Consents
and Approvals and compliance with U.S. regulations


 


18.18.1     All
consents, licences, authorisations and other approvals necessary for the
conduct of the business of any member of the Group as carried on at the date
hereof have been, or when required will be obtained where failure to obtain
would


 


38

















 


reasonably be
expected to have a Material Adverse Effect, their terms and conditions have
been complied with where any failure to comply would reasonably be expected to
have a Material Adverse Effect and they have not been and, so far as it is
aware, will not be revoked or otherwise terminated where such revocation or
termination is reasonably likely to have a Material Adverse Effect.


 


18.18.2     It
is not engaged, principally or as one of its important activities, in the
business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System of the
United States), or extending credit for the purpose of purchasing or carrying
margin stock and no proceeds of any Loans will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.


 


18.18.3     Neither
it, nor its direct Holding Company, nor any Subsidiary is or is required to be
registered as an “investment company” under the Investment Company Act of 1940.
Neither the making of any Loan nor the application of the proceeds or repayment
thereof by a Borrower, nor the consummation of the other transactions
contemplated by the Finance Documents, will violate any provision of any such
Act or any rule, regulation or order of the Securities and Exchange Commission
of the United States thereunder.


 


18.18.4     No
Obligor is subject to regulation under any United States Federal or State law
or regulation that limits its ability to incur or guarantee indebtedness.


 


18.19              Anti-Terrorism
Laws


 


18.19.1     No
Obligor nor any Affiliate thereof is, or is controlled by, a Restricted Party.
To the best of the Obligors’ knowledge, no Obligor nor any Affiliate thereof (i) has
received funds or other property from a Restricted Party; or (ii) is in
breach of or is the subject of any action or investigation under any
Anti-Terrorism Law.


 


18.19.2     Each
Obligor and, to the best of the Obligors’ knowledge, each Affiliate thereof has
taken reasonable measures to ensure compliance with the Anti-Terrorism Laws.


 


18.20              No
Winding-up


 


Save for any Corporate Reconstruction as defined in and permitted by
Clause 21.7 (Merger) and any other solvent reorganisation or solvent
liquidation of any member of the Group (and solely in the case of a solvent
liquidation other than an Obligor), no Obligor nor any of its Material Subsidiaries
have taken any corporate action nor have any other steps been taken or legal
proceedings been started or (to the best of its knowledge and belief having
made all reasonable enquiry) threatened in writing against any Obligor nor any
of its Material Subsidiaries for its winding-up, dissolution, administration,
extraordinary administration (amministrazione
straordinaria), bankruptcy (fallimento) or
composition with creditors (concordato preventivo)
or equivalent proceeding in any other jurisdiction unless any Agreed Exception
applies to such procedure.


 


18.21              Pension
Schemes


 


Each member of the Group is in compliance with all applicable laws and
contracts relating to pension schemes (if any) for the time being operated by
it or in which it participates and each such pension scheme is adequately
funded based on reasonable actuarial assumptions and recommendations as
required by law in each case where failure to do so is reasonably likely to
have a Material Adverse Effect.


 


39

















 


18.22              ERISA
and Multiemployer Plans


 


18.22.1     Each
Employee Plan is in compliance in form and operation with ERISA and the Code
and all other applicable laws and regulations save where any failure to comply
would not reasonably be expected to have a Material Adverse Effect.


 


18.22.2     Each
Employee Plan which is intended to be qualified under Section 401 (a) of
the Code has been determined by the IRS to be so qualified.


 


18.22.3     There
exists no Unfunded Pension Liability with respect to any Employee Plan, except
as would not have a Material Adverse Effect.


 


18.22.4     No
U.S. Group Company nor any ERISA Affiliate has incurred a complete or partial
withdrawal from any Multiemployer Plan that would reasonably be expected to
have a Material Adverse Effect, and if each of the U.S. Group Companies and
each ERISA Affiliate were to withdraw in a complete withdrawal as of the date
hereof, the aggregate withdrawal liability that would be incurred would not
reasonably be expected to have a Material Adverse Effect.


 


18.22.5     Each
U.S. Group Company and any ERISA Affiliate has made all material contributions
to or under each such Employee Plan required by law within the applicable time
limits prescribed thereby, the terms of such Employee Plan, or any contract or
agreement requiring contributions to an Employee Plan save where any failure to
comply would not reasonably be expected to have a Material Adverse Effect.


 


18.22.6     Neither
any U.S. Group Company nor any ERISA Affiliate has incurred or reasonably expects
to incur any liability to PBGC save for any liability for premiums due in the
ordinary course or other liability which would not reasonably be expected to
have a Material Adverse Effect.


 


18.23              Repetition


 


The Repeating Representations are deemed to be made by each Obligor (by
reference to the facts and circumstances then existing) on the date of each
Utilisation Request and the first day of each Interest Period.


 


19                               Information
Undertakings


 


The undertakings in this Clause 19 remain in force from the date of
this Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.


 


19.1                     Financial
statements


 


19.1.1            The
Borrower shall supply or procure the supply to the Agent in sufficient copies
for all the Lenders:


 


(i)                                  as
soon as practicable after the same become available, but in any event within
150 days after the end of each of its financial years its Consolidated
Financial Statements for that financial year and/or (during the Pro-Forma
Relevant Period), the Consolidated Pro-Forma Financial Statements. For the
avoidance of doubt, the first Consolidated Financial Statements to be delivered
hereunder shall be those relating to the financial year ending on 31 December 2009;
and


 


40

















 


(ii)                               as
soon as practicable after the same become available, but in any event within 90
days after the end of each quarter (other than the last quarter in any
financial year) of its financial years its Consolidated Quarterly Financial
Statements and/or (during the Pro-Forma Relevant Period) the Consolidated
Quarterly Pro-Forma Financial Statements for that quarter. For the avoidance of
doubt, the first Consolidated Quarterly Financial Statement to be delivered
hereunder shall be those relating to the quarter ending on 31 March 2010,


 


provided that in case of
Consolidated Pro-Forma Financial Statements and Consolidated Pro-Forma
Quarterly Financial Statement, the Borrower shall provide the Agent with the
information on the basis of which the relevant pro-forma statements have been
drafted and any additional material information relating to the relevant Target
which the Lenders may require acting reasonably, unless the disclosure of the
information is not permitted by provisions of law or regulations or
confidentiality undertakings agreed in writing.


 


19.1.2            If
so requested by the Agent, any Guarantor shall supply to the Agent in
sufficient copies for all the Lenders, as soon as they become available, but in
any event within 150 days of each of its financial years its audited
consolidated financial statements (but in the case of Guarantors other than
Luxottica U.S. Holdings Corp. only, if actually prepared) or financial
statements, as the case may be, which have been prepared in accordance with GAAP
for that financial year, it being agreed and understood by the Parties that (i) Luxottica
U.S. Holdings Corp shall provide its audited consolidated financial statements
as long as the equivalent undertaking is provided under the U.S.$ 1,500,000,000
facility agreement dated 12 October 2007 entered into among, inter alios, the Borrower and Luxottica U.S. Holdings Corp.
(the 2007 Facility Agreement); and (ii) in
the event that the relevant undertaking of the 2007 Facility Agreement is
amended (and/or formally waived) by the parties thereto and unless auditing of
the consolidated financial statements is requested by applicable laws or
regulations, Luxottica U.S. Holdings Corp. shall provide its consolidated
financial statements together with any report, limited review and/or statement
which shall be requested by the amended (or waived, as applicable) provision of
the 2007 Facility Agreement.


 


19.2                     Compliance
Certificate


 


19.2.1            The
Borrower shall supply or procure to supply to the Agent, with each set of financial
statements delivered pursuant to paragraph 19.1.1, a Compliance Certificate
setting out (in reasonable detail) computations as to compliance with Clause 20
(Financial Covenants) as at the date as at which those financial statements
were drawn up, it being understood and agreed that the first Compliance
Certificate shall be delivered with the first Consolidated Financial Statements
for the financial year ending on 31 December 2009.


 


19.2.2            Each
Compliance Certificate shall be signed by any two directors of the Borrower
and, other than during the Pro-Forma Relevant Period if required to be
delivered with the financial statements delivered pursuant to paragraph
19.1.1(i), by the Borrower’s auditors, it being agreed that should the
Borrower’s auditors refuse to sign the compliance certificate for internal
policy reasons of such auditors (but not, for the avoidance of doubt, by reason
of breach of the relevant financial covenant) this shall not be an Event of
Default but the Borrower shall nevertheless use


 


41

















 


reasonable
endeavours to ensure that its auditors provide some other form of confirmation
in a form and substance satisfactory to the Lenders.


 


19.3                     Requirements
as to financial statements


 


19.3.1            Each
set of financial statements delivered by the Obligors pursuant to
Clause 19.1 (Financial statements) shall be certified by an Authorised
Signatory of the relevant Obligor as fairly representing its financial
condition as at the date as at which those financial statements were drawn up.


 


19.3.2


 


(i)                                  The
Borrower shall procure that each set of financial statements delivered pursuant
to Clause 19.1 (Financial statements) is prepared using GAAP, and in respect
only of the Consolidated Financial Statements and Consolidated Quarterly
Financial Statements using accounting practices and financial reference periods
consistent with those applied in the preparation of its Original Financial
Statements unless, in relation to any set of Consolidated Financial Statements or
Consolidated Quarterly Financial Statements (as the case may be), it notifies
the Agent that there has been a change in GAAP, or the accounting practices or
reference periods and its auditors deliver to the Agent:


 


(a)                        a
description of any change necessary for those Consolidated Financial Statements
or Consolidated Quarterly Financial Statements (as the case may be) to reflect
the GAAP, accounting practices and reference periods upon which its Original
Financial Statements were prepared; and


 


(b)                       sufficient
information, in form and substance as may be reasonably required by the Agent,
to enable the Lenders to determine whether Clause 20 (Financial covenants) has
been complied with and make an accurate comparison between the consolidated
financial position indicated in those financial statements and its Original
Financial Statements.


 


(ii)                               If
the Borrower notifies the Agent of a change in accordance with paragraph (i) above
then the Borrower and Agent shall enter into negotiations in good faith with a
view to agreeing:


 


(a)                        whether
or not the change might result in any material alteration in the commercial
effect of any of the terms of this Agreement; and


 


(b)                       if
so, any amendments to this Agreement which may be necessary to ensure that the
change does not result in any material alteration in the commercial effect of
those terms,


 


and if any amendments are agreed they shall take effect and be binding
on each of the Parties in accordance with their terms.


 


Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to reflect
the basis upon which the Original Financial Statements were prepared.


 


42

















 


19.4                     Information:
miscellaneous


 


In addition to the information undertaking provided under Clause 7.2.1
and any other information undertaking provided elsewhere in this Agreement, the
Borrower shall supply to the Agent (in sufficient copies for all the Lenders,
if the Agent so requests):


 


19.4.1            all
documents dispatched by the Borrower to all of their respective creditors
generally (in their capacity as creditors) at the same time as they are
dispatched or as soon as practicable thereafter;


 


19.4.2            as
soon as practicable upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current, threatened or
pending against any member of the Group, which are reasonably likely to be
adversely determined and which would, if adversely determined, have a Material
Adverse Effect; and


 


19.4.3            promptly,
such further information regarding the financial condition, business and
operations of any member of the Group as any Finance Party (through the Agent)
may reasonably request which the Borrower can provide without breaching any
applicable law or regulation or contract.


 


19.5                     Notification
of default


 


Each Obligor shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its occurrence
(unless that Obligor is aware that a notification has already been provided by
another Obligor).


 


19.6                     Use
of websites


 


19.6.1            The
Borrower may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders (the “Website
Lenders”) who accept this method of communication by posting this
information onto an electronic website designated by the Borrower and the Agent
(the “Designated Website”) if:


 


(i)                                  the
Agent expressly agrees (after consultation with each of the Lenders) that it
will accept communication of the information by this method;


 


(ii)                               both
the Borrower and the Agent are aware of the address of and any relevant
password specifications for the Designated Website; and


 


(iii)                            the
information is in a format previously agreed between the Borrower and the
Agent.


 


If any Lender (a “Paper Form Lender”)
does not agree to the delivery of information electronically then the Agent
shall notify the Borrower accordingly and the Borrower shall supply the
information to the Agent (in sufficient copies for each Paper Form Lender)
in paper form.


 


19.6.2            The
Agent shall supply each Website Lender with the address of and any relevant
password specifications for the Designated Website following designation of
that website by the Borrower and the Agent.


 


19.6.3            Each
Borrower shall promptly upon becoming aware of its occurrence notify the Agent
if:


 


(i)                                  the
Designated Website cannot be accessed due to technical failure;


 


43

















 


(ii)                               the
password specifications for the Designated Website change;


 


(iii)                            any
new information which is required to be provided under this Agreement is posted
onto the Designated Website;


 


(iv)                           any
existing information which has been provided under this Agreement and posted
onto the Designated Website is amended; or


 


(v)                              it
become aware that the Designated Website or any information posted onto the
Designated Website is or has been infected by any electronic virus or similar
software.


 


If a Borrower notifies the Agent under paragraph (i) or paragraph (v) above,
all information to be provided by that Borrower under this Agreement after the
date of that notice shall be supplied in paper form unless and until the Agent
and each Website Lender is satisfied that the circumstances giving rise to the
notification are no longer continuing.


 


19.6.4            Any
Website Lender may request, through the Agent, one paper copy of any
information required to be provided under this Agreement which is posted onto
the Designated Website. The Borrower shall comply with any such request within
10 Business Days.


 


19.7                     “Know
your customer” checks and other regulatory requirements


 


19.7.1            Each
Obligor shall (subject always to Clause 24 (Confidentiality)) promptly upon the
request of the Agent or any Lender supply through the Agent, or procure the
supply through the Agent of, such documentation and other evidence as is
reasonably requested by the Agent (for itself or on behalf of any Lender) or
any Lender (for itself or on behalf of any prospective New Lender) in order for
the Agent, such Lender or any prospective New Lender to carry out and be
satisfied with the results of all necessary “know your customer” or other
checks in relation to any person that it is required to carry out pursuant to
the transactions contemplated in the Finance Documents.


 


19.7.2            Each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself) in order for the Agent to carry out and be satisfied
with the results of all necessary “know your customer” or other checks in
relation to any person that it is required to carry out pursuant to the
transactions contemplated in the Finance Documents.


 


19.7.3            Pursuant
to and in accordance with the transparency rules enacted under Article 9.1
of the CICR Resolution of 4 March 2003 effective as of October 2003
and the following transparency rules applicable to transactions and
banking and financial services of Bank of Italy published in the Italian official
gazette (Gazzetta Ufficiale) on 10 September 2009
(the “Transparency Rules”), the Parties
mutually acknowledge and declare that this Agreement and any of its terms and
conditions have been negotiated on an individual basis and, as a result, this
Agreement falls into the category of the agreements “che
costituiscono oggetto di trattativa individuale” which are exempted
from the application of Section II of the Transparency Rules.


 


44
















 


20                               Financial Covenants


 


20.1                     Financial
definitions


 


In this Clause:


 


“Consolidated EBITDA” means in respect
of any Relevant Period, the consolidated income from operations of the Group
for that Relevant Period after adding back all amounts deducted from consolidated
income from operations for depreciation, amortisation, write-downs of goodwill
and other intangible assets, and extraordinary or non-recurring items, as
determined (a) at any time other than during the Pro-Forma Relevant
Period, from the Consolidated Financial Statements or the Consolidated
Quarterly Financial Statements (as the case may be), or (b) during the
Pro-Forma Relevant Period, from the Consolidated Pro-Forma Financial Statements
or the Consolidated Quarterly Pro-Forma Financial Statements (as the case may
be);


 


“Consolidated Net Finance Charges” means
for any Relevant Period the consolidated amount of interest expense of the
Group, minus interest income, all as determined from (a) at any time other
than during the Pro-Forma Relevant Period, the Consolidated Financial
Statements or the Consolidated Quarterly Financial Statements (as the case may
be), or (b) during the Pro-Forma Relevant Period, from the Consolidated
Pro-Forma Financial Statements or the Consolidated Quarterly Pro-Forma Financial
Statements (as the case may be);


 


“Consolidated Total Net Debt” means at
the end of any Relevant Period, as determined from the Consolidated Financial
Statements or the Consolidated Quarterly Financial Statements (as the case may
be), the sum of:


 


(i)                                  bank overdrafts; plus


 


(ii)                               current portion of notes
payable; plus


 


(iii)                            current portion of long term
debt; plus


 


(iv)                           notes payable; plus


 


(v)                              long term debt,


 


less:


 


(vi)                           Cash and Cash Equivalents; and


 


(vii)                        Restricted Cash; and


 


“Restricted Cash” means cash held as
security against loans and other bank indebtedness.


 


20.2                     Financial
condition


 


The Borrower shall ensure that:


 


20.2.1            Consolidated
Total Net Debt in respect of any Relevant Period shall not at any time be equal
to or exceed 3.5 times the Consolidated EBITDA for such Relevant Period.


 


20.2.2            Consolidated
EBITDA in respect of any Relevant Period shall not be less than five times the
Consolidated Net Finance Charges for such Relevant Period.


 


45

















 


20.3                     Financial
testing


 


The financial covenants set out in Clause 20.2 (Financial condition)
shall be tested quarterly for each financial year by reference to (a) at
any time other than during the Pro-Forma Relevant Period, each of the
Consolidated Financial Statements or the Consolidated Quarterly Financial
Statements (as the case may be) and/or each Compliance Certificate delivered
pursuant to Clause 19.2 (Compliance Certificate), or (b) during the
Pro-Forma Relevant Period, each of the Consolidated Pro-Forma Financial
Statements or the Consolidated Quarterly Pro-forma Financial Statements (as the
case may be) and/or each Compliance Certificate delivered pursuant to Clause
19.2 (Compliance Certificate).


 


21                               General
Undertakings


 


The undertakings in this Clause 21 remain in force from the date of
this Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.


 


21.1                     Authorisations


 


Each Obligor shall promptly comply with and do all that is necessary to
maintain in full force and effect and obtain any Authorisation required under
any law or regulation of its jurisdiction of incorporation to enable it to
perform its obligations under the Finance Documents and to ensure (subject to
any general principles of law specifically referred to in any legal opinion
delivered pursuant to Clause 4.1 (Initial conditions precedent)) the legality,
validity, enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.


 


21.2                     Compliance with laws


 


Each Obligor shall comply in all respects with all laws to which it may
be subject, if failure so to comply is reasonably likely to have a Material
Adverse Effect.


 


21.3                     Negative
pledge


 


21.3.1            No
Obligor shall (and the Borrower shall ensure that no other member of the Group
will) create or permit to subsist any Security over any of its assets.


 


21.3.2            No
Obligor shall (and the Borrower shall ensure that no other member of the Group
will):


 


(i)                                  sell,
transfer or otherwise dispose of any of its assets on terms whereby they are or
may be leased to or re-acquired by an Obligor or any other member of the Group;


 


(ii)                               sell,
transfer or otherwise dispose of any of its receivables on recourse terms;


 


(iii)                            enter
into any arrangement under which money or the benefit of a bank or other
account may be applied, set-off or made subject to a combination of accounts;
or


 


(iv)                           enter
into any other preferential arrangement having a similar effect,


 


46

















 


in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing the
acquisition of an asset.


 


21.3.3            Paragraphs
21.3.1 and 21.3.2 above do not apply to:


 


(i)                                  any
Security listed in Schedule 7 (Existing Security) except to the extent the
principal amount secured by that Security is increased beyond the amount stated
in that Schedule, it being agreed that any such increase shall be permitted to
the extent that it falls in the basket set out in sub paragraph (vii)(A) or
(B) of this Clause (as the case may be);


 


(ii)                               any
netting or set-off arrangement entered into by any member of the Group in the
ordinary course of its banking arrangements for the purpose of netting debit
and credit balances;


 


(iii)                            any
lien arising by operation of law and in the ordinary course of trading (nell’esercizio ordinario dell’attività commerciale caratteristica
dell’impresa);


 


(iv)                           any
Security or Quasi-Security securing indebtedness permitted under paragraph 21.12.2,
to the extent such Security or Quasi-Security is discharged within the date
falling six months after the date of the relevant acquisition provided that if
it is not so discharged it shall be permitted to the extent it falls within the
basket set out in sub-paragraph (vii) below;


 


(v)                              any
Security or Quasi-Security in connection with deposits to landlords for lease
rentals or to any tax or customs and excise authority, utility company or car
leasing company, in each case granted in the ordinary course of the business of
the relevant member of the Group;


 


(vi)                           any
cash collateral granted in relation to the issue of a Bank Guarantee up to an
amount equal to €15,000,000 in the aggregate at any time (without double
counting any liability of the Borrower and/or Luxottica U.S. Holdings Corp. (as
the case may be) under such Bank Guarantee); or


 


(vii)                        any
other Security or Quasi-Security not referred to in sub-paragraph (i) to (vi) above
securing indebtedness permitted under Clause 21.12 (Indebtedness for Borrowed
Money) the principal amount of which (A) in the case of the Obligors does
not in aggregate exceed 5 per cent of the Consolidated Total Assets or (B) in
the case of any other member of the Group does not in aggregate exceed twenty
per cent of the Consolidated Equity of the Group,


 


in each case as determined at the end of any Relevant Period by
reference to the Consolidated Financial Statements or the Consolidated
Quarterly Financial Statements (as the case may be) in respect of such Relevant
Period.


 


21.4                     Segregation
of assets under the Italian Civil Code


 


No Italian Obligor shall segregate assets for the purpose of Article 2447-bis
of the Italian Civil Code (“Patrimoni Destinati ad uno
Specifico Affare”), nor shall it issue any class of stock or other
financial instruments under Article 2447-ter of the Italian Civil Code.


 


47

















 


21.5                     Intellectual
Property


 


21.5.1            The
Borrower shall, and the Borrower shall procure that each Group member shall, do
all acts as are reasonably practicable to maintain, protect and safeguard the
Intellectual Property which is necessary for the business of the relevant
member of the Group and not terminate or discontinue the use of any such
Intellectual Property save in each case when failure to do so is reasonably
likely to have a Material Adverse Effect.


 


21.5.2            The
Borrower shall not, and the Borrower shall ensure that no member of Group
shall:


 


(i)                                  use
or allow to be used, or take any step or omit to take any step in respect of
any Intellectual Property, in any way which is reasonably likely to have a
Material Adverse Effect; and


 


(ii)                               without
the prior written consent of the Agent, dispose of or transfer or terminate or
enter into any contract or licence in respect of any Intellectual Property,
where this is reasonably likely to have a Material Adverse Effect.


 


21.6                     Disposals


 


21.6.1            No
Obligor shall (and the Borrower shall ensure that no other member of the Group
will) enter into a single transaction or a series of transactions (whether
related or not) and whether voluntary or involuntary to sell, lease, transfer
or otherwise dispose of any asset.


 


21.6.2            Paragraph
21.6.1 above does not apply to any sale, lease, transfer or other disposal or
disposals:


 


(i)                                  made in the ordinary course of the business (nell’esercizio ordinario dell’attività commerciale caratteristica
dell’impresa) of the disposing entity;


 


(ii)                               of
assets in exchange for other assets comparable or superior as to type, value
and quality;


 


(iii)                            the
proceeds of which are applied to the acquisition by any member of the Group, of
property or assets (including the capital stock of any entity) that replaces
the relevant property or assets disposed of, or in property or assets that will
be used or useful in the business or operations of the Group, within 365 days;


 


(iv)                           made
as a result of or in connection with a Corporate Reconstruction as defined in
and pursuant to Clause 21.7 (Merger);


 


(v)                              the
proceeds of which are applied in voluntary prepayment of the Facility in
accordance with the terms of this Agreement (such payment to occur on the last
day of the Interest Period for each Loan being prepaid during which such
disposed proceeds are received by the relevant member of the Group);


 


(vi)                           in
respect of any assets other than shares or other ownership interests in any
member of the Group, by an Obligor to another Obligor or by a member of the
Group (other than an Obligor) to another member of the Group (including an
Obligor);


 


48

















 


(vii)                        of
shares or other ownership interests in any member of the Group by a member of
the Group to another member of the Group, subject always to Clause 7.2 (Change
of Control);


 


(viii)                     that
is a disposal of own treasury shares (azioni proprie);
or


 


(ix)                             where
the book value of the assets (when aggregated with the book value of the assets
for any other sale, lease, transfer or other disposal by the Group, other than
any permitted under paragraphs (i) to (vii) above) carried out over
the period from the date hereof to the Termination Date does not exceed 30 per
cent of the Consolidated Total Assets of the Group at the end of any Relevant
Period as determined by the Consolidated Financial Statements or Consolidated
Quarterly Financial Statements (as the case may be) for the Relevant Period
from the date hereof to the Termination Date.


 


21.6.3            Without
prejudice to paragraphs 21.6.1 and 21.6.2, if one or more disposals not
included in the categories listed under items (i) to (viii) of
paragraph 21.6.2 exceed in aggregate Euro 25,000,000 per annum, the Borrower
shall (and/or procure that the other member of the Group) plough the relevant
net proceeds back into the business of the Group within the following 12 months
and in assets comparable or superior in value and quality at its discretion.


 


21.7                     Merger


 


No Obligor nor any Material Subsidiaries shall (and the Borrower shall
ensure that no other Material Subsidiaries will) enter into any amalgamation,
demerger, merger or corporate reconstruction (each a “Corporate
Reconstruction”) save for:


 


21.7.1            Corporate
Reconstructions entered into on a solvent basis between members of the Group;
or


 


21.7.2            mergers
entered into by a member of the Group on a solvent basis and in accordance with
applicable laws with any corporate entity following the acquisition by such
member of the Group of such entity; or


 


21.7.3            save
to the extent such transformation or equivalent process is reasonably likely to
have a Material Adverse Effect:


 


(i)                                  transformations
of any Italian member of the Group from a società a responsabilità
limitata to a società per azioni
(or vice versa), or


 


(ii)                               the
change in the corporate status and/or form and/or tax status of any U.S. Group
Company including without limitation, from a C corporation to a limited
liability corporation (or vice versa); or


 


(iii)                            the
equivalent of (i) and (ii) above with respect to any member of the
Group incorporated in any jurisdiction,


 


provided that (i) any
such Corporate Reconstruction is subject to the provisions of Clause 19.7.1 (“Know your customer” checks  and other
regulatory requirements) and (ii) if so requested by the Agent,
a Guarantor that is the subject of any Corporate Reconstruction confirms,
promptly following its implementation, its obligations hereunder to the
Lenders, such confirmation to be in form and substance satisfactory to the
Agent (acting reasonably and in good faith).


 


49

















 


21.7.4            If a
result of any permitted Corporate Reconstruction under this Clause 21.7, the
jurisdiction of incorporation of any Obligor changes, tax gross-up, if a Tax
Deduction is applicable, shall apply to any payment made by the affected
Obligor.


 


21.8                     Change
of business


 


The Borrower shall ensure that no substantial change is made to the
general nature of the business of the Borrower and the Group from that carried
on at the date of this Agreement, except for any changes in business that
results from any permitted disposal under Clause 21.6.2.


 


21.9                     Insurance


 


Each Obligor shall (and the Borrower shall ensure that each member of
the Group will) maintain insurances on and in relation to its business and
assets with reputable underwriters or insurance companies against those risks
and to the extent as is usual for companies carrying on the same or
substantially similar business.


 


21.10              Environmental
Matters


 


21.10.1     Each
Obligor shall (and the Borrower shall ensure that each member of the Group
will) comply in all material respects with all applicable Environmental Laws
and obtain and maintain any requisite Environmental Permits applicable to it in
each case where failure to do so is reasonably likely to have a Material
Adverse Effect.


 


21.10.2     The
Borrower shall inform the Agent in writing as soon as reasonably practicable
upon becoming aware of the same:


 


(i)                                  if
any Environmental Claim has been commenced or (to the best of that Borrower’s
knowledge and belief) is threatened against any member of the Group; or


 


(ii)                               of
any facts or circumstances which will or are reasonably likely to result in any
Environmental Claim being commenced or threatened against any member of the
Group,


 


where in each case the claim is reasonably likely to be adversely
determined against that member of the Group and if so determined is reasonably
likely to have a Material Adverse Effect.


 


21.11               Taxation


 


Each Obligor shall pay all Taxes imposed upon it or its assets within
the time period allowed without incurring penalties where failure to do so is
reasonably likely to have a Material Adverse Effect, (save to the extent that
payment is being contested in good faith, where such payment can be lawfully
withheld).


 


21.12              Indebtedness
for Borrowed Money


 


The Obligors will procure that no member of the Group not being an
Obligor will incur, create or permit to subsist any Indebtedness for Borrowed
Money or enter into any arrangement or agreement to create, incur or permit to
subsist any Indebtedness for Borrowed Money save for any Indebtedness for
Borrowed Money:


 


21.12.1     arising
under or permitted pursuant to the Finance Documents;


 


 


50

















 


21.12.2     owed
by any entity acquired by any member of the Group (including any refinancing of
such Indebtedness for Borrowed Money) provided that (i) it was not created
in contemplation of such acquisition; and (ii) it shall be included within
the basket set out in sub-paragraph 21.12.4 below, at any time following the
date falling 12 months after the date of such acquisition, unless
prior to the expiring of such 12 month period, the relevant acquired
company has acceded to this Agreement as an Additional Guarantor;


 


21.12.3     intercompany
loans received from a Group member in the ordinary course of business; or


 


21.12.4     other
Indebtedness for Borrowed Money not referred in paragraphs 21.12.1 to 21.12.3
above which does not exceed 20 per cent of the Consolidated Equity of the Group
(when aggregated with any Loans and guarantees issued in accordance with
paragraph 21.13.2(iv)) in each case as determined at the end of any Relevant
Period by the Consolidated Financial Statements or the Consolidated Quarterly
Financial Statements (as the case may be) for the Relevant Period.


 


21.13              Loans
and Guarantees


 


21.13.1     The
Borrower shall ensure that no member of the Group that is not an Obligor will
make any loans, grant any credit (save in the ordinary course of business) or
give any guarantee or indemnity to or for the benefit of any person or
otherwise voluntarily assume any liability, whether actual or contingent, in
respect of any obligation of any person.


 


21.13.2     Paragraph
21.13.1 shall not apply to:


 


(i)                                  any
guarantees or counter-indemnities in respect of guarantees to (A) any
applicable VAT office for accelerated VAT refunds (B) landlords for lease
rentals (C) any tax or customs and excise authority, utility company or
car leasing company in each case granted in the ordinary course of business;


 


(ii)                               any
guarantees or counter-indemnities in respect of any Bank Guarantee issued in
the ordinary course of business;


 


(iii)                            other
guarantees granted in the ordinary course of business (excluding guarantees in
respect of Indebtedness for Borrowed Money of any other member of the Group);
or


 


(iv)                           any
other loans, guarantees or financial accommodation by any member of the Group
that is not an Obligor provided that
the aggregate of such loans, guarantee or financial accommodation when
aggregated with any Indebtedness for Borrowed Money (without double counting)
under paragraph 21.12.4 does not exceed 20 per cent of the Consolidated Equity
of the Group, in each case as determined at the end of any Relevant Period by
the Consolidated Financial Statements or the Consolidated Quarterly Financial
Statements (as the case may be) for the Relevant Period.


 


 


51

















 


21.14              Distributions


 


Whilst an Event
of Default is continuing, the Borrower shall not:


 


21.14.1     pay,
make or declare any dividend, return on capital, repayment of capital
contributions or other distribution (whether in cash or in kind) or make any
distribution of assets or other payment whatsoever in respect of share capital
whether directly or indirectly; or


 


21.14.2     pay
any fees to its shareholders, other than fees paid under agreements entered
into with its shareholders at arm’s length and in the ordinary course of
business.


 


21.15              Arm’s
Length Basis and derivative transactions


 


No Obligor shall, and the Borrower shall procure that no Group member
shall, enter into:


 


(i)                                  any
material arrangement or contract with any other member of the Group save where
such material arrangement or contract is entered into on an arm’s length basis
considering the entire arrangement and is fair and equitable to the Group as a
whole;


 


(ii)                               any
derivative transactions other than those necessary or reasonably convenient
taking into account the ordinary course and the prudent management of the
current business of the relevant entity.


 


21.16              Refinancing
of Existing Financial Indebtedness


 


The Borrower shall repay the Existing Indebtedness as and when it falls
due and payable.


 


22                               Events
of Default


 


Each of the events or circumstances set out in this Clause 22 is an
Event of Default.


 


22.1                     Non-payment


 


An Obligor does not pay on the due date any amount payable pursuant to
a Finance Document at the place at and in the currency in which it is expressed
to be payable unless:


 


22.1.1            its
failure to pay is caused by administrative or technical error; and


 


22.1.2            payment
is made within three Business Days of its due date.


 


22.2                     Financial
covenants


 


Any requirement of Clause 20 (Financial covenants) is not satisfied.


 


22.3                     Other
obligations


 


An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Finance Documents (including, without
limitation, those specified in Clause 21 (General Undertakings)) and such
failure, if capable of remedy, is not remedied within 15 Business Days after
the earlier to occur of the date the Agent has given written notice thereof to
the relevant Obligor and the date such Obligor has actual knowledge thereof.


 


52

















 


22.4                     Misrepresentation


 


Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on behalf of any
Obligor under or in connection with any Finance Document is or proves to have
been incorrect or misleading in any material respect when made or deemed to be
made in accordance with this Agreement by reference to the facts and
circumstances then existing, provided that,
such incorrect or misleading representation or statement has not been remedied
within 15 Business Days from the earlier of (a) the date the Agent
has given written notice thereof to the relevant Obligor; and (b) the date
such Obligor has actual knowledge thereof.


 


22.5                     Cross
default


 


22.5.1            Any
Financial Indebtedness of any Obligor, Finance Subsidiary or Material
Subsidiary is not paid when due nor within any originally applicable grace
period.


 


22.5.2            Any
Financial Indebtedness of any Obligor, Finance Subsidiary or Material
Subsidiary is declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however described).


 


22.5.3            Any
commitment for any Financial Indebtedness of any Obligor, Finance Subsidiary or
Material Subsidiary is cancelled by a creditor of any Obligor, Finance
Subsidiary or Material Subsidiary as a result of an event of default (however
described).


 


22.5.4            Any
creditor of any Obligor, Finance Subsidiary or Material Subsidiary becomes
entitled to declare any Financial Indebtedness of Obligor, Finance Subsidiary
or Material Subsidiary due and payable prior to its specified maturity as a
result of an event of default (however described).


 


22.5.5            In
this Clause, “Finance Subsidiary” means any
member of the Group (other than an Obligor or a Material Subsidiary) whose sole
or primary business is that of raising or incurring Financial Indebtedness for
and on behalf of the Group to the extent such Financial Indebtedness so
incurred or raised is not less than 10 per cent of the Consolidated Total Net
Debt in the aggregate at any time.


 


22.5.6            No
Event of Default will occur under this Clause 22.5 if (i) the aggregate
amount of Financial Indebtedness or commitment for Financial Indebtedness falling
within paragraphs 22.5.1 to 22.5.4 above is less than €25,000,000 (or its
equivalent in any other currency or currencies) or (ii) if the action or
entitlement referred to in paragraphs 22.5.1 to 22.5.4 above arises as a result
of the change in control of any Target acquired by any member of the Group,
provided that with respect to paragraphs 22.5.1 and 22.5.4 above, the failure
to pay any Financial Indebtedness, subject always to (i) of this
sub-paragraph 22.5.6 above, by any Target, such relevant entity or any of their
respective Subsidiaries at any time following the relevant acquisition, and
within five Business Days after the giving of any demand or notice for payment
by any relevant creditor, shall constitute an Event of Default.


 


22.6                     Insolvency


 


22.6.1            Any
Obligor or any of its Material Subsidiaries are unable or admit in writing
their inability to pay its debts as they fall due, suspends making payments on
any of its debts or, by reason of actual or anticipated financial difficulties,
commences negotiations with one or more of its creditors with a view to
rescheduling any of its 


 


53

















 


indebtedness or
in respect of any Obligor or any of its Material Subsidiaries which is a
corporation incorporated in Italy, such company is dissolved pursuant to Article 2484
of the Italian Civil Code.


 


22.6.2            A
moratorium is declared in respect of any indebtedness of any Obligor or any of
its Material Subsidiaries.


 


22.6.3            Any Obligor shall in
any US jurisdiction:


 


(a)                     apply
for, or consent to, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its property;


 


(b)                    make
a general assignment for the benefit of its creditors;


 


(c)                     commence
a voluntary case under Title 11 of the United States of America Code entitled
Bankruptcy (or any successor thereof), as amended;


 


(d)                    file
a petition with respect to itself seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganisation, liquidation, dissolution,
arrangement or winding up, or composition or readjustment of debts; or


 


(e)                     take any corporate action for the purpose of effecting any of the
foregoing with respect to itself.


 


22.7                     Insolvency
proceedings


 


Any corporate
action, legal proceedings or other procedure or step is taken in relation to:


 


22.7.1            the
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of any Obligor or any of its Material
Subsidiaries other than a solvent liquidation or reorganisation of any Material
Subsidiary or any other transaction permitted under Clause 21.7 (Merger);


 


22.7.2            a
composition, compromise, assignment or arrangement with all the creditors of
any Obligor or any of its Material Subsidiaries;


 


22.7.3            the
appointment of a liquidator (other than in respect of a solvent liquidation of
any Material Subsidiaries or any other transaction permitted under Clause 21.7
(Merger)), receiver, administrative receiver, administrator, compulsory manager
or other similar officer in respect of any Obligor or any of its Material
Subsidiaries or any of its assets; or


 


22.7.4            in
respect of any Obligor or any of its Material Subsidiaries which is a
corporation incorporated in Italy, the submission of such corporation to any
procedure which is a procedura concorsuale,
including without limitation, fallimento and concordato preventivo under R.d 16 March 1942 No.267
and amministrazione straordinaria under Lg.
8 July 1999 No.270 (as amended from time to time), as amministrazione
straordinaria under L.18. February 2004 No. 39; or


 


22.7.5            In respect of any
Obligor, a proceeding or case shall be commenced, without the application or
consent of such Obligor, in any US court of competent jurisdiction, seeking:


 


(i)           its reorganisation, liquidation,
dissolution, arrangement or winding-up or the composition or readjustment of
its debts;


 


54

















 


(ii)        the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of the Obligor or of all or any
substantial part of its property; or


 


(iii)                  similar relief in respect of any Obligor under any law relating to the
bankruptcy insolvency, reorganisation, winding-up or composition or adjustment
of debts,


 


and any such proceeding or case referred to in
paragraphs (i)-(iii) above shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be entered
and continue unstayed and in effect, for a period of 60 or more days, or an
order for relief against such Obligor shall be entered in an involuntary case
under Title 11 of the United States of America Code entitled Bankruptcy (or any
successor thereto) as amended,


 


or any analogous procedure or step is taken in any jurisdiction unless
in each case any Agreed Exception applies to any such proceedings.


 


22.8                     Creditors’
process and final judgment


 


22.8.1            Any
expropriation, attachment, sequestration, distress or execution affects any
asset or assets of a member of the Group having an aggregate value of €25,000,000
and is not discharged within 15 days; or


 


22.8.2            any
member of the Group fails to comply with or pay any sum due from it or them
under any final judgment or any final order made or given by any court of
competent jurisdiction when such sums exceed €25,000,000 (or its equivalent in
any other currency),


 


in each case unless any Agreed Exception applies.


 


22.9                     Ownership
of the Obligors


 


An Obligor (other than the Borrower) is not or ceases to be a
Subsidiary of the Borrower save for any merger or reorganisation entered into
in accordance with a Corporate Reconstruction permitted under Clause 21.7.


 


22.10              Unlawfulness


 


It is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents.


 


22.11               Repudiation


 


An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.


 


22.12              Litigation


 


Any litigation, arbitration, administrative proceedings or governmental
or regulatory investigations, proceedings or disputes are commenced or threatened
in writing against any Obligor or any of its Material Subsidiaries or its
respective assets or revenues or there are any circumstances likely to give
rise to any such litigation, arbitration, administrative proceedings or
governmental or regulatory investigations, proceedings or disputes which in
each case are reasonably likely to be adversely determined, and if so
determined is reasonably likely to have a Material Adverse Effect.


 


55
















 


22.13              Auditor’s
Qualification


 


The auditors of the Group qualify their annual audit report to the
Consolidated Financial Statements in a manner which has, or would have, a
Material Adverse Effect.


 


22.14              Employee
Plans


 


Any ERISA Event or breach of a representation in Clause 18.22 (ERISA
and  Multiemployer Plans)  shall have occurred and the liability of a U.S. Group
Company or its ERISA Affiliates, either individually or in the aggregate,
related to such ERISA Event or breaches, individually or when aggregated with
all other ERISA Events and all such breaches, would have or would be reasonably
expected to have a Material Adverse Effect.


 


22.15              Cessation
of business


 


Any Obligor ceases (or threatens in writing to cease) to carry on all
or a substantial part of its business other than as a result of a merger or
intra-group reorganisation permitted under the terms of this Agreement.


 


22.16              Compulsory
suspension or revocation from listing


 


The compulsory suspension and/or revocation of the listing from NYSE
and/or Borsa Italiana of the securities of the Borrower ordained by the
relevant listing authority which is continuing for 30 consecutive trading days
as a result of (i) and adverse opinion (“giudizio
negativo”) or a disclaimer of the inability to render an opinion by
the auditor to the Borrower and/or (ii) wrongful actions or dealings of
the Borrower considered by the relevant listing authorities capable of being
detrimental to the investors.


 


22.17              Acceleration


 


22.17.1     On and at any time after the
occurrence of an Event of Default which is continuing (and for the avoidance of
doubt, following, if applicable and to the extent so provided by the relevant
Clauses, the expiry of any grace period and/or the giving of any notice and/or
the making of any determination, and/or subject to any relevant Agreed
Exceptions and/or carve outs and/or relevant thresholds) the Agent may, and
shall if so directed by the Majority Lenders, by notice to the Borrower:


 


(i)                                  declare
that an Event of Default has occurred; and


 


(ii)                               in relation
to any Event of Default mentioned in paragraph 22.1 (Non payment) and in
paragraph 22.2 (Financial Covenants), terminate (risolvere)
this Agreement in accordance with Article 1456 of the Italian Civil Code;
or


 


(iii)                            in
relation to any Event of Default howsoever ascribable (imputabile)
to the Borrower:


 


(a)                        demand
the performance of the relevant defaulted obligation (intimare
l’adempimento) and terminate (risolvere) this
Agreement in accordance with Article 1454 of the Italian Civil Code,
provided that the notices delivered pursuant to paragraph 22.3 (Other
Obligations), and paragraph 22.4 (Misrepresentation) shall have the same effect of
the declaration set out in Article 1454 of the Italian Civil Code
following the lapse of the grace period therein provided increased of 2 (two)
Business Days; or


 


56

















 


(b)                       claim for the termination (risoluzione) of this Agreement in accordance with Article 1453
of the Italian Civil Code; or


 


(iv)                           in
relation to any Event of Default mentioned in paragraph 22.6 (Insolvency), paragraph 22.7 (Insolvency proceedings) and
paragraph 22.8 (Creditors’ process and final judgement), accelerate
the maturity of the Facility (dichiarare la decadenza
dal beneficio del termine); or


 


(v)                              declare
the termination of this Agreement (dichiarare la risoluzione
del contratto) in accordance with Article 1353 of the Italian
Civil Code, provided that, for the purposes of the provision set out in this
paragraph (v), the Parties agree that:


 


(a)                        each
Event of Default shall constitute a condition subsequent (condizione
risolutiva), which is provided for in the sole interest and for the
exclusive benefit of the Finance Parties (each, a “Condition
Subsequent”);


 


(b)                       this
Agreement will be terminated (risolto) by
virtue of the occurrence of any such Condition Subsequent only if, and to the
extent that, the Finance Parties expressly declare, through the Agent, their
intention to avail themselves of any such Condition Subsequent having occurred;
and


 


(c)                        by
derogation of Article 1360, first paragraph of the Italian Civil Code, the
termination (risoluzione) of this Agreement by
virtue of the occurrence of a Condition Subsequent, will be effective as at the
date on which the Borrower receives the notice delivered by the Agent in
accordance with this paragraph 22.17.1, and shall not bear retrospective
effects; or


 


(vi)                           withdraw
(recedere) from this Agreement, to the
extent permitted under applicable law.


 


22.17.2     Upon
termination of (risoluzione) this Agreement
according to paragraphs 22.17.1(ii), 22.17.1(iii) or 22.17.1(v) or
acceleration of maturity of (decadenza dal beneficio
del termine) this Agreement according to paragraph 22.17.1(iv) or
withdrawal from (recesso) this Agreement according
to paragraph 22.17.1(vi),


 


(i)                                  the
Total Commitments shall be cancelled forthwith;


 


(ii)                               all
Loans together with accrued interest, and all other amounts accrued or
outstanding under the Finance Documents shall become immediately due and
payable; and


 


(iii)                            the
Finance Parties shall retain any and all amounts already received from, or on
behalf of, the Borrower under the Finance Documents.


 


22.17.3     It
is agreed that the provisions set out in Clause 8.3 (Default Interest), Clause
12 (Tax Gross-up and Indemnities), Clause 13(Increased Costs), Clause 14 (Other
Indemnities), Clause 16 (Costs and Expenses) and Clause 24 (Confidentiality)
will survive the termination of (risoluzione) or
acceleration of maturity of (decadenza dal beneficio
del termine) or withdrawal from (recesso) this
Agreement.


 


57

















 


22.17.4     If
an Event of Default under Clause 22.6 (Insolvency) or Clause 22.7 (Insolvency
Proceedings) shall occur in any US jurisdiction in respect of any Obligor, then
without notice to such Obligor or any other act by the Agent or any other
person, the Loans to such Obligor, interest thereon and all other amounts owed
by such Obligor under the Finance Documents shall become immediately due and
payable without presentment, demand, protest or notice of any kind, all of
which are expressly waived.


 


22.17.5     The
remedies set out in this Clause 22.17 (Acceleration) are in addition to any
other remedy available to the Finance Parties under this Agreement or
applicable law, including remedies available under Article 1186 of the
Italian Civil Code if any of the circumstances therein provided occurs in
relation to the Borrower.


 


58

















 


Section 9

Changes to Parties


 


23                               Changes
to the Lenders


 


23.1                     Assignments
and transfers by the Lenders


 


Subject to this Clause 23, a Lender (the “Existing
Lender”) may:


 


23.1.1            assign
any of its rights and/or obligations (cessione dei diritti o
cessione totale o parziale del contratto) under this Agreement; or


 


23.1.2            transfer
by way of assignment, assumption and release any of its rights or obligations (cessione dei crediti con accollo liberatorio di obbligazioni)
under this Agreement,


 


to a Qualifying Lender at the time of the assignment and/or transfer
(the “New Lender”).


 


23.2                     Conditions
of assignment or transfer


 


23.2.1            The
written consent of the Borrower is required for an assignment or transfer by an
Existing Lender, unless the assignment or transfer is to another Lender or an
Affiliate of a Lender and provided that no such consent is required following
the occurrence of any Default which is continuing.


 


23.2.2            The
consent of the Borrower to an assignment or transfer must not be unreasonably
withheld or delayed. The Borrower will be deemed to have given its consent 10
Business Days after the Existing Lender (through the Agent) has requested it
unless consent is expressly refused by the Borrower (through the Agent) within
that time.


 


23.2.3            An
assignment (cessione dei diritti or cessione totale o parziale del contratto) will only be
effective on:


 


(i)                                  receipt
by the Agent of written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same obligations
to the other Finance Parties as it would have been under if it was a Lender;
and


 


(ii)                               performance
by the Agent of all “know your customer” or other checks relating to any person
that it is required to carry out in relation to such assignment to a New
Lender, the completion of which the Agent shall promptly notify to the Existing
Lender and the New Lender.


 


23.2.4            A
transfer by way of assignment, assumption and release any of its rights or
obligations (cessione dei crediti con accollo liberatorio
di obbligazioni) will only be effective if the procedure set out in Clause
23.5 (Procedure for transfer) is complied with.


 


23.2.5            If:


 


(i)                                  a
Lender assigns or transfers any of its rights or obligations under the Finance
Documents or changes its Facility Office; and


 


59

















 


(ii)                               as a
result of circumstances existing at the date the assignment, transfer or change
occurs, an Obligor would be obliged to make a payment to the New Lender or
Lender acting through its new Facility Office under Clause 12 (Tax gross-up and
indemnities) or Clause 13 (Increased costs) or incur any other cost, tax or
expense of whatsoever nature including the payment of any Mandatory Cost,


 


then the New Lender or Lender acting through its new Facility Office is
only entitled to receive any such payment to the same extent as the Existing
Lender or Lender acting through its previous Facility Office would have been if
the assignment, transfer or change had not occurred.


 


23.2.6            Notwithstanding
any other provision of this Agreement, each Lender may freely charge, assign or
otherwise create any encumbrance (whether by way of collateral or otherwise) in
or over all or any portion of its Loans and/ or over any or all of that
Lender’s rights and/ or the obligations owed to that Lender under the Finance
Documents, without consultation with, notice to or consent of the Borrower or
any other Party, to any central or supranational bank (including the European
Central Bank) or federal reserve as security for that Lender’s obligations to
that central or supranational bank (including the European Central Bank) or
federal reserve, it being understood and agreed that the relevant Lender shall
be entitled to disclose any finance document and relevant information without
the need of any Confidentiality Agreement by way of partial derogation to
paragraph 23.7 and without that qualifies a breach of any confidentiality
undertakings but, in any case, subject to any provision of applicable law and
regulation.


 


23.3                     Assignment
or transfer fee


 


23.3.1            The
New Lender shall, on the date upon which an assignment or transfer takes
effect, pay to the Agent (for its own account) a fee of Euro 2,500 with respect
to an assignment or transfer .


 


23.3.2            Without
prejudice to Clauses 12.2 and 12.4, the Borrower shall not be liable for any
additional costs of whatsoever nature, tax or expense in connection with any
assignment or transfer.


 


23.4                     Limitation
of responsibility of Existing Lenders


 


23.4.1            Unless
expressly agreed to the contrary, an Existing Lender makes no representation or
warranty and assumes no responsibility to a New Lender for:


 


(i)                                  the
legality, validity, effectiveness, adequacy or enforceability of the Finance
Documents or any other documents;


 


(ii)                               the
financial condition of any Obligor;


 


(iii)                            the
performance and observance by any Obligor of its obligations under the Finance
Documents or any other documents; or


 


(iv)                           the
accuracy of any statements (whether written or oral) made in or in connection
with any Finance Document or any other document,


 


and any representations or warranties implied by law are excluded.


 


60

















 


23.4.2            Each
New Lender confirms to the Existing Lender and the other Finance Parties that
it:


 


(i)                                  has
made (and shall continue to make) its own independent investigation and assessment
of the financial condition and affairs of each Obligor and its related entities
in connection with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing Lender in
connection with any Finance Document; and


 


(ii)                               will
continue to make its own independent appraisal of the creditworthiness of each
Obligor and its related entities whilst any amount is or may be outstanding
under the Finance Documents or any Commitment is in force.


 


23.4.3            Nothing
in any Finance Document obliges an Existing Lender to:


 


(i)                                  accept
a re-transfer from a New Lender of any of the rights and obligations assigned
or transferred under this Clause 23; or


 


(ii)                               support
any losses directly or indirectly incurred by the New Lender by reason of the
non-performance by any Obligor of its obligations under the Finance Documents
or otherwise.


 


23.5                     Procedure
for transfer


 


23.5.1            Subject
to the conditions set out in Clause 23.2 (Conditions of assignment or transfer)
a transfer is effected in accordance with paragraph 23.5.3 below when the Agent
executes an otherwise duly completed Transfer Certificate delivered to it by
the Existing Lender and the New Lender. The Agent shall, subject to paragraph
23.5.2 below, as soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply with the terms
of this Agreement and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.


 


23.5.2            The
Agent shall only be obliged to execute a Transfer Certificate delivered to it
by the Existing Lender and the New Lender upon its completion of all “know your
customer” or other checks relating to any person that it is required to carry
out in relation to the transfer to such New Lender.


 


23.5.3            On
the Transfer Date:


 


(i)                                  to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by way of assignment, assumption and release any of its rights or
obligations (cessione dei crediti con accollo liberatorio
di obbligazioni) its rights and obligations under the Finance
Documents each of the Obligors and the Existing Lender shall be released from
further obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents shall be
cancelled (being the “Discharged Rights and
Obligations”);


 


(ii)                               each
of the Obligors and the New Lender shall assume obligations towards one another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and the New Lender have
assumed and/or acquired the same in place of that Obligor and the Existing
Lender;


 


61

















 


(iii)                            the
Agent, the New Lender and other Lenders shall acquire the same rights and
assume the same obligations between themselves as they would have acquired and
assumed had the New Lender been a Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that extent the
Agent and the Existing Lender shall each be released from further obligations
to each other under the Finance Documents; and


 


(iv)                           the
New Lender shall become a Party as a “Lender”.


 


23.6                     Copy
of Transfer Certificate to Borrower


 


The Agent shall, as soon as reasonably practicable after it has
executed a Transfer Certificate, send to the Borrower a copy of that Transfer
Certificate.


 


23.7                     Disclosure
of information


 


Any Lender may disclose to any of its Affiliates and any other person:


 


23.7.1            to
(or through) whom that Lender assigns or transfers (or may potentially assign
or transfer) all or any of its rights and obligations under this Agreement;


 


23.7.2            with
(or through) whom that Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under which payments
are to be made by reference to, this Agreement or any Obligor; or


 


23.7.3            to
whom, and to the extent that, information is required to be disclosed by any
applicable law or regulation,


 


any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate if, in relation to paragraphs 23.7.1
and 23.7.2 above, the person to whom the information is to be given has entered
into a Confidentiality Undertaking.


 


24                               Confidentiality


 


24.1                     Each Finance Party hereby severally undertakes to the Obligors that it
will keep confidential and that it will not make use of for any purposes
(otherwise than for the purposes of the Finance Documents) any of the Finance
Documents or other documents relating to this Agreement and all of the
information distributed on behalf of the Obligors or contained in, received
under or obtained in the course of discussions (together with any analyses and
other documents which the relevant Finance Party has prepared or have been
prepared on its behalf), other than any such document or information which has
become generally available to the public otherwise than by disclosure by any
Finance Party or any of the persons described in paragraph 24.1.3 below,
provided that, each Finance Party shall be entitled to make disclosure of the
same:


 


24.1.1            subject
to Clause 23.7 (Disclosure of Information) to any of its Affiliates or any
person to whom it is proposing to enter into, or has entered into, any kind of
assignment, transfer, substitution, participation or other similar arrangement
by reference to this Agreement, provided that,
such information is disclosed only to such person if and to the extent
necessary for his activities and each such person will be informed of the
confidential nature of the information and the provisions of this Agreement;


 


24.1.2            to
its auditors, accountants, legal counsel and tax advisers appointed and to any
other professional advisers appointed to act in connection with the preparation
or 


 


62

















 


administration of
the Finance Documents or the enforcement of, or realisation of any security
provided under, any of the Finance Documents, provided that,
such information is disclosed only to such person if and to the extent
necessary for his activities and each such person will be informed of the
confidential nature of the information and the provisions of this Agreement;


 


24.1.3            to
any other third party where the Borrower has previously agreed in writing that
disclosure may be made to that third party;


 


24.1.4            to
any banking or other regulatory or examining authorities (whether governmental
or otherwise) where such disclosure is requested by them and with whose
requests that Finance Party has to comply (or with whose requests banks in the
relevant jurisdiction are accustomed to complying);


 


24.1.5            to
any central or supranational bank (including the European Central Bank) or
federal reserve in the context of the transactions provided under Clause
23.2.6;


 


24.1.6            pursuant
to subpoena or other legal process, or in connection with any action, suit or
proceeding relating to any of the Finance Documents; and


 


24.1.7            pursuant
to any law or regulation having the force of law.


 


The provisions of this Clause 24 shall supersede any undertakings with
respect to confidentiality previously provided by any Finance Party to the
Borrower.


 


25                               Changes
to the Obligors


 


25.1                     Assignment
and transfers by Obligors


 


No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents other than by operation of law
pursuant to a merger or other form of corporate reorganisation permitted under
Clause 21.7 of this Agreement.


 


63

















 


Section 10

The Finance Parties


 


26                               Role
of the Agent


 


26.1                     Appointment
of the Agent


 


26.1.1            Each
other Finance Party appoints the Agent to act as its agent (mandatario con rappresentanza) under and in connection with the
Finance Documents.


 


26.1.2            Each
other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental rights,
powers, authorities and discretions.


 


26.2                     Duties
of the Agent


 


26.2.1            The
Agent shall promptly forward to a Party the original or a copy of any document
which is delivered to the Agent for that Party by any other Party.


 


26.2.2            Except
where a Finance Document specifically provides otherwise, the Agent is not
obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another Party.


 


26.2.3            If
the Agent receives notice from a Party referring to this Agreement, describing
a Default and stating that the circumstance described is a Default, it shall
promptly notify the other Finance Parties.


 


26.2.4            If
the Agent is aware of the non-payment of any principal, interest, commitment
fee or other fee payable to a Finance Party (other than the Agent) under this
Agreement it shall promptly notify the other Finance Parties.


 


26.2.5            The
Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature.


 


26.3                     No
fiduciary duties


 


26.3.1            Nothing
in this Agreement constitutes the Agent as a trustee or fiduciary of any other
person.


 


26.3.2            The
Agent shall not be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.


 


26.4                     Business
with the Group


 


The Agent may accept deposits from, lend money to and generally engage
in any kind of banking or other business with any member of the Group.


 


26.5                     Rights
and discretions of the Agent


 


26.5.1            The
Agent may rely on:


 


64

















 


(i)                                  any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and


 


(ii)                               any
statement made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.


 


26.5.2            The
Agent may assume (unless it has received notice to the contrary in its capacity
as agent for the Lenders) that:


 


(i)                                  no
Default has occurred (unless it has actual knowledge of a Default arising under
Clause 22.1 (Non-payment));


 


(ii)                               any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised; and


 


(iii)                            any
notice or request made by a Borrower (other than a Utilisation Request or Selection
Notice) is made on behalf of and with the consent and knowledge of all the
Obligors.


 


26.5.3            The
Agent may engage, pay for and rely on the advice or services of any lawyers,
accountants, surveyors or other experts.


 


26.5.4            The
Agent may act in relation to the Finance Documents through its personnel and
agents.


 


26.5.5            The
Agent may disclose to any other Party any information it reasonably believes it
has received as agent under this Agreement.


 


26.5.6            Notwithstanding
any other provision of any Finance Document to the contrary, the Agent is not
obliged to do or omit to do anything if it would or might in its reasonable
opinion constitute a breach of any law or regulation or a breach of a fiduciary
duty or duty of confidentiality.


 


26.5.7            The
Agent may not disclose to any Finance Party any details of the rate notified to
the Agent by any Lender for the purpose of Clause 10.2.1(ii).


 


26.6                     Majority
Lenders’ instructions


 


26.6.1            Unless
a contrary indication appears in a Finance Document, the Agent shall (i) exercise
any right, power, authority or discretion vested in it as Agent in accordance
with any instructions given to it by the Majority Lenders (or, if so instructed
by the Majority Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in accordance with an
instruction of the Majority Lenders.


 


26.6.2            Unless
a contrary indication appears in a Finance Document, any instructions given by
the Majority Lenders will be binding on all the Finance Parties.


 


26.6.3            The
Agent may refrain from acting in accordance with the instructions of the
Majority Lenders (or, if appropriate, the Lenders) until it has received such
security as it may require for any cost, loss or liability (together with any
associated VAT) which it may incur in complying with the instructions.


 


65

















 


26.6.4            In
the absence of instructions from the Majority Lenders, (or, if appropriate, the
Lenders) the Agent may act (or refrain from taking action) as it considers to
be in the best interest of the Lenders.


 


26.6.5            The
Agent is not authorised to act on behalf of a Lender (without first obtaining
that Lender’s consent) in any legal or arbitration proceedings relating to any
Finance Document.


 


26.7                     Responsibility
for documentation


 


The Agent:


 


26.7.1            is
not responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, an Obligor or any
other person given in or in connection with any Finance Document; or


 


26.7.2            is
not responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in connection
with any Finance Document.


 


26.8                     Exclusion
of liability


 


26.8.1            Without
limiting paragraph 26.8.2 below, the Agent will not be liable for any action
taken by it under or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct (dolo o colpa
grave) under Article 2236 of the Italian Civil Code.


 


26.8.2            No
Party (other than the Agent) may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it might have against
the Agent or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document.


 


26.8.3            The
Agent will not be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Finance Documents to be
paid by the Agent if the Agent has taken all necessary steps as soon as
reasonably practicable to comply with the regulations or operating procedures
of any recognised clearing or settlement system used by the Agent for that
purpose.


 


26.8.4            Nothing
in this Agreement shall oblige the Agent to carry out any “know your customer”
or other checks in relation to any person on behalf of any Lender and each
Lender confirms to the Agent that it is solely responsible for any such checks
it is required to carry out and that it may not rely on any statement in
relation to such checks made by the Agent.


 


26.9                     Lenders’
indemnity to the Agent


 


Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the Agent,
within three Business Days of demand, against any cost, loss or liability
incurred by the Agent (otherwise than by reason of the Agent’s gross negligence
or wilful misconduct) in acting as Agent under the Finance Documents (unless
the Agent has been reimbursed by an Obligor pursuant to a Finance Document).


 


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26.10              Resignation
of the Agent


 


26.10.1     The
Agent may resign and appoint one of its Affiliates as successor by giving
notice to the other Finance Parties and the Borrower.


 


26.10.2     Alternatively
the Agent may resign by giving notice to the other Finance Parties and the
Borrower, in which case the Majority Lenders may appoint a successor Agent.
Such successor Agent must be acceptable to the Borrower acting reasonably and
in good faith.


 


26.10.3     If
the Majority Lenders have not appointed a successor Agent in accordance with
paragraph 26.10.2 above within 30 days after notice of resignation was given,
the Agent (after consultation with the Borrower) may appoint a successor Agent
subject to such successor Agent being acceptable to the Borrower acting
reasonably and in good faith.


 


26.10.4     The
retiring Agent shall, at its own cost, make available to the successor Agent
such documents and records and provide such assistance as the successor Agent
may reasonably request for the purposes of performing its functions as Agent
under the Finance Documents.


 


26.10.5     The
Agent’s resignation notice shall only take effect upon the appointment of a
successor.


 


26.10.6     Upon
the appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 26. Its successor and each of the other
Parties shall have the same rights and obligations amongst themselves as they
would have had if such successor had been an original Party.


 


26.10.7     After
consultation with the Borrower, the Majority Lenders may, by notice to the
Agent, require it to resign in accordance with paragraph 26.10.2 above. In this
event, the Agent shall resign in accordance with paragraph 26.10.2 above.


 


26.11               Confidentiality


 


26.11.1      In
acting as agent for the Finance Parties, the Agent shall be regarded as acting
through its agency division which shall be treated as a separate entity from
any other of its divisions or departments.


 


26.11.2      If
information is received by another division or department of the Agent, it may
be treated as confidential to that division or department and the Agent shall
not be deemed to have notice of it.


 


26.12              Relationship
with the Lenders


 


26.12.1     The
Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has received not
less than five Business Days prior notice from that Lender to the contrary in
accordance with the terms of this Agreement.


 


26.12.2     Each
Lender shall supply the Agent with any information required by the Agent in
order to calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory
Cost formulae).


 


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26.13              Credit
appraisal by the Lenders


 


Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document, each
Lender confirms to the Agent that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but
not limited to:


 


26.13.1     the
financial condition, status and nature of each member of the Group;


 


26.13.2     the
legality, validity, effectiveness, adequacy or enforceability of any Finance
Document and any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document;


 


26.13.3     whether
that Lender has recourse, and the nature and extent of that recourse, against
any Party or any of its respective assets under or in connection with any
Finance Document, the transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document; and


 


26.13.4     the
adequacy, accuracy and/or completeness of any other information provided by the
Agent, any Party or by any other person under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document.


 


26.14              Reference
Banks


 


If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Borrower) appoint another Lender or an Affiliate of a
Lender to replace that Reference Bank.


 


26.15              Deduction
from amounts payable by the Agent


 


If any Party owes an amount to the Agent under the Finance Documents
the Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent would
otherwise be obliged to make under the Finance Documents and apply the amount
deducted in or towards satisfaction of the amount owed. For the purposes of the
Finance Documents that Party shall be regarded as having received any amount so
deducted. Notwithstanding the above, an Agent may not unless expressly
authorised in writing by a Borrower, deduct any amount from any Utilisation
requested by that Borrower.


 


27                               Conduct
of Business by the Finance Parties


 


27.1                     No provision of this Agreement will:


 


27.1.1            interfere
with the right of any Finance Party to arrange its affairs (tax or otherwise)
in whatever manner it thinks fit;


 


27.1.2            oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim; or


 


27.1.3            oblige
any Finance Party to disclose any information relating to its affairs (tax or
otherwise) or any computations in respect of Tax.


 


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28                               Sharing
Among the Finance Parties


 


28.1                     Payments
to Finance Parties


 


If a Finance Party (a “Recovering Finance Party”)
receives or recovers any amount from an Obligor other than in accordance with
Clause 29 (Payment mechanics) and applies that amount to a payment due under
the Finance Documents then:


 


28.1.1            the
Recovering Finance Party shall, within three Business Days, notify details of
the receipt or recovery, to the Agent;


 


28.1.2            the
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Finance Party would have been paid had the receipt or
recovery been received or made by the Agent and distributed in accordance with
Clause 29 (Payment mechanics), without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or distribution; and


 


28.1.3            the
Recovering Finance Party shall, within three Business Days of demand by the
Agent, pay to the Agent an amount (the “Sharing Payment”)
equal to such receipt or recovery less any amount which the Agent determines
may be retained by the Recovering Finance Party as its share of any payment to
be made, in accordance with Clause 29.5 (Partial payments).


 


28.2                     Redistribution
of payments


 


The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than the
Recovering Finance Party) in accordance with Clause 29.5 (Partial payments).


 


28.3                     Recovering
Finance Party’s rights


 


28.3.1            On a
distribution by the Agent under Clause 28.2 (Redistribution of payments), the
Recovering Finance Party will be subrogated to the rights of the Finance
Parties which have shared in the redistribution.


 


28.3.2            If
and to the extent that the Recovering Finance Party is not able to rely on its
rights under paragraph 28.3.1 above, the relevant Obligor shall be liable to
the Recovering Finance Party for a debt equal to the Sharing Payment which is
immediately due and payable.


 


28.4                     Reversal
of redistribution


 


If any part of the Sharing Payment received or recovered by a
Recovering Finance Party becomes repayable and is repaid by that Recovering
Finance Party, then:


 


28.4.1            each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 28.2 (Redistribution of payments) shall, upon request of the
Agent, pay to the Agent for account of that Recovering Finance Party an amount
equal to the appropriate part of its share of the Sharing Payment (together
with an amount as is necessary to reimburse that Recovering Finance Party for
its proportion of any interest on the Sharing Payment which that Recovering
Finance Party is required to pay); and


 


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28.4.2            that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable to the
reimbursing Finance Party for the amount so reimbursed.


 


28.5                     Exceptions


 


28.5.1            This
Clause 28 shall not apply to the extent that the Recovering Finance Party would
not, after making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant Obligor.


 


28.5.2            A
Recovering Finance Party is not obliged to share with any other Finance Party
any amount which the Recovering Finance Party has received or recovered as a
result of taking legal or arbitration proceedings, if:


 


(i)                                  it
notified that other Finance Party of the legal or arbitration proceedings; and


 


(ii)                               that
other Finance Party had an opportunity to participate in those legal or arbitration
proceedings but did not do so as soon as reasonably practicable having received
notice and did not take separate legal or arbitration proceedings.


 


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Section 11

Administration


 


29                               Payment
Mechanics


 


29.1                     Payments
to the Agent


 


29.1.1            On
each date on which an Obligor or a Lender is required to make a payment under a
Finance Document, that Obligor or Lender shall make the same available to the
Agent (unless a contrary indication appears in a Finance Document) for value on
the due date at the time and in such funds specified by the Agent as being
customary at the time for settlement of transactions in the relevant currency
in the place of payment. A payment made by an Obligor to the Agent which
relates to moneys owed to a Finance Party shall be deemed to be received by
such Finance Party once made to the Agent.


 


29.1.2            Payment
shall be made to such account in the principal financial centre of the country
of that currency (or, in relation to euro, in a principal financial centre in a
Participating Member State or London) with such bank as the Agent specifies.


 


29.2                     Distributions
by the Agent


 


Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 29.3 (Distributions to an Obligor),
Clause 29.4 (Clawback) and Clause 26.15 (Deduction from amounts payable by the
Agent) be made available by the Agent as soon as practicable after receipt to
the Party entitled to receive payment in accordance with this Agreement (in the
case of a Lender, for the account of its Facility Office), to such account as
that Party may notify to the Agent by not less than five Business Days’ notice
with a bank in the principal financial centre of the country of that currency
(or, in relation to euro, in the principal financial centre of a Participating
Member State or London).


 


29.3                     Distributions
to an Obligor


 


The Agent may (with the consent of the Obligor or in accordance with
Clause 30 (Set-off)) apply any amount received by it for that Obligor in or
towards payment (on the date and in the currency and funds of receipt) of any
amount due from that Obligor under the Finance Documents or in or towards
purchase of any amount of any currency to be so applied.


 


29.4                     Clawback


 


29.4.1            Where
a sum is to be paid to the Agent under the Finance Documents for another Party,
the Agent is not obliged to pay that sum to that other Party (or to enter into
or perform any related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.


 


29.4.2            If
the Agent pays an amount to another Party and it proves to be the case that the
Agent had not actually received that amount, then the Party to whom that amount
(or the proceeds of any related exchange contract) was paid by the Agent shall
on demand refund the same to the Agent together with interest on that amount
from


 


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the date of
payment to the date of receipt by the Agent, calculated by the Agent to reflect
its cost of funds.


 


29.5                     Partial
payments


 


29.5.1            If
the Agent receives a payment that is insufficient to discharge all the amounts
then due and payable by an Obligor under the Finance Documents, the Agent shall
apply that payment towards the obligations of that Obligor under the Finance
Documents in the following order:


 


(i)                                  first, in or towards payment pro rata of any
unpaid fees, costs and expenses of the Agent and the Mandated Lead Arrangers
and the Bookrunners under the Finance Documents;


 


(ii)                               secondly, in or towards payment pro
rata of any accrued interest, fee or commission due but unpaid under this
Agreement;


 


(iii)                            thirdly, in or towards payment pro
rata of any principal due but unpaid under this Agreement; and


 


(iv)                           fourthly, in or towards payment pro
rata of any other sum due but unpaid under the Finance Documents.


 


29.5.2            The
Agent shall, if so directed by the Majority Lenders, vary the order set out in
paragraphs 29.5.1(ii) to 29.5.1(iv) above.


 


29.5.3            Paragraphs
29.5.1 and 29.5.2 above will override any appropriation made by an Obligor.


 


29.6                     No
set-off by Obligors


 


All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.


 


29.7                     Business
Days


 


29.7.1            Any
payment which is due to be made on a day that is not a Business Day shall be
made on the next Business Day in the same calendar month (if there is one) or
the preceding Business Day (if there is not).


 


29.7.2            During
any extension of the due date for payment of any principal or Unpaid Sum under
this Agreement interest is payable on the principal or Unpaid Sum at the rate
payable on the original due date.


 


29.8                     Currency
of account


 


29.8.1            Subject
to paragraphs 29.8.2 and 29.8.3 below, Euro is the currency of account and
payment for any sum due from an Obligor under any Finance Document.


 


29.8.2            Each
payment in respect of costs, expenses or Taxes shall be made in the currency in
which the costs, expenses or Taxes are incurred.


 


29.8.3            Any amount
expressed to be payable in a currency other than Euro shall be paid in that
other currency.


 


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29.9                     Change
of currency


 


29.9.1            Unless
otherwise prohibited by law, if more than one currency or currency unit are at
the same time recognised by the central bank of any country as the lawful
currency of that country, then:


 


(i)                                  any
reference in the Finance Documents to, and any obligations arising under the
Finance Documents in, the currency of that country shall be translated into, or
paid in, the currency or currency unit of that country designated by the Agent
(after consultation with the Borrower); and


 


(ii)                               any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded up or down by the Agent
(acting reasonably).


 


29.9.2            If a
change in any currency of a country occurs, this Agreement will, to the extent
the Agent (acting reasonably and after consultation with the Borrower)
specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank Market and otherwise
to reflect the change in currency.


 


30                               Set-off


 


A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that Finance
Party) against any matured obligation owed by that Finance Party to that
Obligor, regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different currencies, the Finance
Party may convert either obligation at a market rate of exchange in its usual
course of business for the purpose of the set-off.


 


31                               Notices


 


31.1                     Communications
in writing


 


Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be made by
fax or letter.


 


31.2                     Addresses


 


The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection with
the Finance Documents is:


 


31.2.1            in
the case of the Borrower, that identified with its name below;


 


31.2.2            in
the case of each Lender or any other Obligor, that notified in writing to the
Agent on or prior to the date on which it becomes a Party; and


 


31.2.3            in
the case of the Agent, that identified with its name below,


 


or any substitute address or fax number or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other Parties, if
a change is made by the Agent) by not less than five Business Days’ notice.


 


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31.3                     Delivery


 


31.3.1            Any
communication or document made or delivered by one person to another under or
in connection with the Finance Documents will only be effective:


 


(i)                                  if
by way of fax, when received in legible form; or


 


(ii)                               if
by way of letter, when it has been left at the relevant address or five
Business Days after being deposited in the post postage prepaid in an envelope
addressed to it at that address, and, if a particular department or officer is
specified as part of its address details provided under Clause 31.2
(Addresses), if addressed to that department or officer.


 


31.3.2            Any
communication or document to be made or delivered to the Agent will be
effective only when actually received by the Agent and then only if it is
expressly marked for the attention of the department or officer identified with
the Agent’s signature below (or any substitute department or officer as the
Agent shall specify for this purpose).


 


31.3.3            All
notices from or to an Obligor shall be sent through the Agent.


 


31.3.4            Each
Obligor (other than the Borrower) irrevocably appoints the Borrower to act as
its agent:


 


(i)                                  to
give and receive all communications under this Agreement;


 


(ii)                               to
supply all information concerning itself to any Finance Party; and


 


(iii)                            to
sign all documents under or in connection with the Finance Documents.


 


31.3.5            Any
communication or document made or delivered to the Borrower in accordance with
this Clause will be deemed to have been made or delivered to each of the
Obligors.


 


31.4                     Notification
of address and fax number


 


Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 31.2 (Addresses) or changing
its own address or fax number, the Agent shall notify the other Parties.


 


31.5                     Electronic
communication


 


31.5.1            Any
communication to be made between the Agent and a Lender under or in connection
with the Finance Documents may be made by electronic mail or other electronic
means, if the Agent and the relevant Lender:


 


(i)                                  agree
that, unless and until notified to the contrary, this is to be an accepted form
of communication;


 


(ii)                               notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by that
means; and


 


(iii)                            notify
each other of any change to their address or any other such information
supplied by them.


 


31.5.2            Any
electronic communication made between the Agent and a Lender will be effective
only when actually received in readable form and in the case of any


 


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electronic
communication made by a Lender to the Agent only if it is addressed in such a
manner as the Agent shall specify for this purpose.


 


31.6                     English
language


 


31.6.1            Any
notice given under or in connection with any Finance Document must be in
English.


 


31.6.2            All
other documents provided under or in connection with any Finance Document must
be:


 


(i)                                  in
English; or


 


(ii)                               if
not in English, and if so required by the Agent, accompanied by a certified
English translation and, in this case, the English translation will prevail
unless the document is a constitutional, statutory or other official document.


 


32                               Calculations
and Certificates


 


32.1                     Accounts


 


In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, in the absence of manifest error the
entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.


 


32.2                     Certificates
and Determinations


 


Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.


 


32.3                     Day
count convention


 


Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number of
days elapsed and a year of 360 days.


 


33                               Partial
Invalidity


 


If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions nor the legality, validity or enforceability of such provision under
the law of any other jurisdiction will in any way be affected or impaired.


 


34                               Remedies
and Waivers


 


No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall operate as
a waiver, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise or the exercise of any other right or
remedy. The rights and remedies provided in this Agreement are cumulative and
not exclusive of any rights or remedies provided by law.


 


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35                               Amendments
and Waivers


 


35.1                     Required
consents


 


35.1.1            Subject
to Clause 35.2 (Exceptions) any term of the Finance Documents may be amended or
waived only with the consent of the Majority Lenders and the Obligors and any
such amendment or waiver will be binding on all Parties.


 


35.1.2            The
Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause.


 


35.2                     Exceptions


 


35.2.1            An
amendment or waiver that has the effect of changing or which relates to:


 


(i)                                  the
definition of “Majority Lenders” in Clause 1.1 (Definitions);


 


(ii)                               an
extension to the date of payment of any amount under the Finance Documents;


 


(iii)                            a
reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission payable;


 


(iv)                           an
increase in or an extension of any Commitment;


 


(v)                              a
change to the Borrower or Guarantors;


 


(vi)                           any
provision which expressly requires the consent of all the Lenders;


 


(vii)                        Clause
2.2 (Finance Parties’ rights and obligations), Clause 23 (Changes to the
Lenders) or this Clause 35,


 


shall not be made without the prior consent of all the Lenders.


 


35.2.2            An
amendment or waiver which relates to the rights or obligations of the Agent may
not be effected without the consent of the Agent.


 


35.3                     Replacement
of a Lender


 


35.3.1            If
at any time any Lender becomes an Increased Cost Lender, a Non-Funding Lender,
a Non-consenting Lender or is affected by circumstances referred to in Clause
7.1 (Illegality) then the Borrower may:


 


(i)                                  give
the Agent at least 5 Business Days’ notice of cancellation of the Commitment of
that Lender and its intention to procure the repayment of that Lender’s
participation in the relevant Loans.  On
the last day of each Interest Period which ends after a Borrower have given
notice under this paragraph (i) (or, if earlier, the date specified by the
Borrower in that notice), the Borrower shall prepay for cash and at par all
(but not part) of that Lender’s participation in the Loans, and following the
final payment the Commitment of that Lender shall immediately be reduced to
zero; or


 


(ii)                               on
not less than 5 Business Days’ prior notice to the Agent and that Lender,
replace that Lender by causing it to (and to the extent permitted by law that
Lender shall) transfer pursuant to clause 23 (Changes to the Lenders) all (but
not part) of its rights and obligations under this Agreement to one or more
existing Lender or one or more newly introduced Lender which


 


76

















 


confirms its willingness to assume and does assume all the obligations
of the transferring Lender (including the assumption of the transferring
Lender’s participations on the same basis as the transferring Lender) (the “Replacement Lender”) for a purchase price in cash payable at
the time of transfer equal to the outstanding principal amount of such Lender’s
participation in the outstanding Loans and all accrued interest, fees, Break
Costs and other amounts payable under the Finance Documents.


 


35.3.2            The
replacement of a Lender pursuant to this Clause shall be subject to the
following conditions:


 


(i)                                  the
Borrower shall have no right to replace the Agent;


 


(ii)                               neither
the Agent nor any Lender shall have any obligation to the Borrower to find a
Replacement Lender;


 


(iii)                            in
the event of a replacement of an Increased Cost Lender, Non-Funding Lender or
Non-Consenting Lender, such replacement must take place no later than 10 days
after the date on which the Increased Cost Lender demanded payment of the
relevant additional amounts or the date on which the relevant Lender became a
Non-Funding Lender or a Non-Consenting Lender or the Lender notified to be
affected by circumstances referred to in Clause 7.1 (Illegality) (as the case
may be); and


 


(iv)                           in
no event shall the Lender replaced under this Clause be required to pay or
surrender to such Replacement Lender any of the fees received by such Lender
pursuant to the Finance Documents.


 


35.3.3            For
the purposes of this Clause 35.3 (Replacement of a Lender):


 


(i)                                  an “Increased Cost Lender” is a Lender to whom any Obligor
becomes obliged to pay additional amounts described in Clause 12 (Tax gross-up
and Indemnities), Clause 13 (Increased Costs) and such requirement is
continuing;


 


(ii)                               a “Non-Funding Lender” is a Lender which refuses to or has
failed to comply with its obligations under this Agreement to participate in a
Loan; and


 


(iii)                            a “Non-Consenting Lender” is a Lender which does not agree to a
consent to, or a waiver or amendment of, any provisions of the Finance
Documents where:


 


(a)                        the
Borrower or the Agent (at the request of the Borrower) has requested the
Lenders to consent to a waiver or an amendment of any provision of the Finance
Documents which requires the consent of all Lenders; and


 


(b)                       the
Super Majority Lenders have agreed to such consent or amendment.


 


35.3.4            If a
Lender does not execute any necessary Transfer Certificate in connection with
Clause 35.3 (Replacement of Lender), the transfer concerned will be deemed to
have been completed 2 Business Days after that Transfer Certificate is executed


 


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and delivered to
that Lender by the transferee concerned and the relevant amount is paid to the
Agent.


 


36                               USA
Patriot Act


 


Each Lender hereby notifies each Obligor that pursuant
to the requirements of the USA Patriot Act, such Lender is required to obtain,
verify and record information that identifies such Obligor, which information
includes the name and address of such Obligor and other information that will
allow such Lender to identify such Obligor in accordance with the USA Patriot
Act.


 


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Section 12

Governing Law and Enforcement


 


37          Governing Law


 


This Agreement and any
non-contractual obligations arising out of or in connection with it are
governed by Italian law.


 


38          Enforcement


 


38.1       Jurisdiction


 


38.1.1    The courts of Milan have
exclusive jurisdiction to settle any dispute arising out of or in connection
with this Agreement (including a dispute regarding the existence, validity or
termination of this Agreement) (a “Dispute”).


 


38.1.2    The Parties agree that the
courts of Milan are the most appropriate and convenient courts to settle
Disputes and accordingly no Party will argue to the contrary.


 


38.1.3    This Clause 38.1 is for the
benefit of the Finance Parties only. As a result, no Finance Party shall be
prevented from taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law, the Finance Parties may take
concurrent proceedings in any number of jurisdictions.


 


39          US provisions


 


Notwithstanding any provisions
in this Agreement or any other Finance Document to the contrary:


 


Controlled
Foreign Corporations: no obligation of a US Obligor under this Agreement
or any Transaction Document shall be guaranteed by, or otherwise supported
directly or indirectly by the assets of, a Non-US Person unless such Non-US
Person is not a “controlled foreign
corporation” as defined in Section 957(a) of the Internal
Revenue Code.  For the avoidance of
doubt, this sub-clause shall not limit any obligation of a United States Person
under this Agreement or the Finance Documents to pledge as security
(a) all of the stock of a controlled foreign corporation held directly by
such United States Person not entitled to vote and (b) less than 66 2/3%
of the total combined voting power of all classes of stock of a controlled foreign
corporation held directly by such United States Person entitled to vote.


 


79

















 


Schedule 1

The Parties


 


Part 1

The Obligors


 


	
  Name of
  Borrower

  	
   

  	
  Registration number (or equivalent, if any)

  
	
  Luxottica Group S.p.A.

  	
   

  	
  00891030272

  



 


	
  Name of
  Guarantor

  	
   

  	
  Registration number (or equivalent, if any)

  
	
  Luxottica S.r.l.

  	
   

  	
  00064820251

  
	
  Luxottica U.S. Holdings Corp.

  	
   

  	
  Not applicable

  



 


80

















 


Part 2

The Original Lenders


 


	
  Name
  of the Original Lenders

  	
   

  	
  Commitment

  (in Euro)

  	
   

  
	
  Calyon S.A., Milan Branch

  	
   

  	
  75,000,000

  	
   

  
	
  Deutsche Bank S.p.A.

  	
   

  	
  75,000,000

  	
   

  
	
  Mediobanca — Banca di Credito
  Finanziario S.p.A.

  	
   

  	
  75,000,000

  	
   

  
	
  UniCredit Corporate Banking S.p.A

  	
   

  	
  75,000,000

  	
   

  
	
  Total

  	
   

  	
  Euro

  	
   300,000,000

  	
   

  
					



 


81

















 


Schedule 2

Conditions Precedent to initial Utilisation


 


1             Obligors


 


(a)


 


(i)           A copy of the
constitutional documents of the Luxottica U.S. Holdings Corp.


 


(ii)          In respect of
each Obligor which is a company incorporated under the laws of Italy:


 


(1)          a copy of the relevant deed of
incorporation (atto costitutivo);


 


(2)          a copy of the current by-laws
(statuto); and


 


(3)          a certificate of registration
(certificato di iscrizione) of
the relevant Obligor with the competent companies’ register dated not earlier
than five Business Days before the execution of this Agreement, mentioning the
absence of any insolvency procedures affecting such Obligor.


 


(iii)         A copy of a good
standing certificate with respect to Luxottica U.S. Holdings Corp., issued as
of a recent date by the Secretary of State or other appropriate official of
Luxottica U.S. Holdings Corp.’s jurisdiction of incorporation or organisation.


 


(b)          A copy of a
resolution of the board of directors of each Obligor:


 


(i)           approving the
terms of, and the transactions contemplated by, the Finance Documents to which
it is a party and resolving that it execute the Finance Documents to which it
is a party;


 


(ii)          authorising a
specified person or persons to execute (or to grant a power of attorney to a
third person to execute) the Finance Documents to which it is a party on its
behalf; and


 


(iii)         authorising a
specified person or persons, on its behalf, to sign and/or despatch (or to
grant a power of attorney to a third person to sign and/or despatch) all
documents and notices (including, if relevant, any Utilisation Request and
Selection Notice) to be signed and/or despatched by it under or in connection
with the Finance Documents to which it is a party.


 


(c)           Copy of any power
of attorney granted by any Obligor in accordance with any resolution of board
of directors referred to in paragraph (b) above to any person authorised
to execute the Finance Documents to which the relevant Obligor is a party
and/or to sign and/or despatch all documents and notices to be signed and/or
despatched by it under or in connection with the Finance Documents to which
that Obligor is a party.


 


(d)          A specimen of the
signature of each person authorised by the resolution referred to in paragraph
(iii) above and/or by any power of attorney referred to in paragraph
(c) above.


 


82

















 


(e)           A certificate of
each Obligor confirming that borrowing or guaranteeing, as appropriate, the
Total Commitments would not cause any borrowing, guaranteeing or similar limit
binding on any Obligor to be exceeded.


 


(f)           A certificate of
an authorised signatory of the relevant Obligor certifying that each copy
document relating to it specified in this Schedule 2 is correct, complete and
in full force and effect as at a date no earlier than the date of this
Agreement.


 


2             Legal
opinions


 


(a)           A legal opinion
of Allen&Overy Studio Legale Associato, as to matters of Italian law (in
the form circulated to the Agent prior to the date of this Agreement).


 


(b)          A legal opinion
of Legance addressed to the Lenders at the date of this Agreement confirming
that the Obligors incorporated in the Republic of Italy have power and
authority to execute this Agreement.


 


(c)           A legal opinion
of Winston & Strawn LLP addressed to the Lenders as at the date of
this Agreement as legal advisers to Luxottica U.S. Holdings Corp. as Original
Guarantor as to matters of US Law.


 


3             Other
documents and evidence


 


(a)           A copy of any
other Authorisation or other document and/or opinion which has been expressly
assumed and/or relied upon by the legal counsel to the Borrower and Luxottica
U.S. Holdings Corp. (as to matters of both Italian and US law) for the purposes
of rendering the opinions under (b) and (c) of paragraph 2. (Legal
Opinion) above.


 


(b)          The Original
Financial Statements.


 


(c)           Evidence that the
fees, costs and expenses then due from the Borrower on or prior to the first
Utilisation Date including (i) costs, expenses and legal fees incurred in
connection with the preparation, negotiation, printing and execution of the
Finance Documents as separately agreed by the Mandated Lead Arrangers and the
Borrower and documented; and (ii) those pursuant to Clause 11 (Fees) and
Clause 16 (Costs and expenses) have been paid or will be paid by the first
Utilisation Date.


 


83

















 


Schedule 3

Requests


 


Part 1

Utilisation Request


 


	
  From:

  	
  [Borrower]

  	 

	 
	
  To:

  	
  [Agent]

  
					



 


Dated:


 


Dear Sirs,


 


Luxottica Group S.p.A. Euro 300,000,000 Facility Agreement
dated [•]

(the “Agreement”)


 


1             We refer to the Agreement.
This is a Utilisation Request. Terms defined in the Agreement have the same
meaning in this Utilisation Request unless given a different meaning in this
Utilisation Request.


 


2             We wish to borrow a Loan on
the following terms:


 


	
  Proposed Utilisation Date:

  	
   

  	
  [·] (or, if that is not a Business Day,
  the next Business Day)

  
	
  Amount:

  	
   

  	
  [·] or, if less, the Available Facility

  
	
  Interest Period:

  	
   

  	
  [·]

  



 


3             We confirm that each condition
specified in Clause 4.2 (Further conditions precedent) is satisfied on the date
of this Utilisation Request.


 


4             The proceeds of this Loan
should be credited to [account].


 


5             This Utilisation Request is
irrevocable.


 


	
  Yours faithfully

  	
   

  	 

	 
	
   

  	
   

  
	
   

  	
   

  	 

	
   

  	
   

  	 

	
  authorised signatory for

  	
   

  	 

	
  [name of the Borrower]

  	
   

  	 

					



 


84

















 


Part 2

Selection Notice


 


	
  From:

  	
  [Borrower]

  	 

	 
	
  To:

  	
  [Agent]

  
					



 


Dated:


 


Dear Sirs,


 


Luxottica Group S.p.A. Euro 300,000,000 Facility Agreement
dated [•]

(the “Agreement”)


 


6             We refer to the Agreement.
This is a Selection Notice. Terms defined in the Agreement have the same
meaning in this Selection Notice unless given a different meaning in this
Selection Notice.


 


7             We refer to the following
Loan[s] with an Interest Period ending on [•].


 


We request that the next
Interest Period for the above Loan[s] is [•]].


 


8             This Selection Notice is
irrevocable.


 


	
  Yours faithfully

  	
   

  	 

	 
	
   

  	
   

  
	 
	
   

  	
   

  
	
   

  	
   

  	 

	
  authorised signatory for

  	
   

  	 

	
  [name of the Borrower]

  	
   

  	 

					



 


85

















 


Schedule 4

Mandatory Cost Formulae


 


1             The Mandatory Cost is an
addition to the interest rate to compensate Lenders for the cost of compliance
with (a) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority which replaces all
or any of its functions) or (b) the requirements of the European Central
Bank or any other authority which replaces all or any of its functions.


 


2             On the first day of each
Interest Period (or as soon as possible thereafter) the Agent shall calculate,
as a percentage rate, a rate (the “Additional
Cost Rate”) for each Lender, in accordance with the paragraphs set
out below. The Mandatory Cost will be calculated by the Agent as a weighted
average of the Lenders’ Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will be
expressed as a percentage rate per annum.


 


3             The Additional Cost Rate for
any Lender lending from a Facility Office in a Participating Member State will
be the percentage notified by that Lender to the Agent. This percentage will be
certified by that Lender in its notice to the Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender’s
participation in all Loans made from that Facility Office) of complying with
the minimum reserve requirements of the European Central Bank in respect of
loans made from that Facility Office.


 


4             Each Lender shall supply any
information required by the Agent for the purpose of calculating its Additional
Cost Rate. In particular, but without limitation, each Lender shall supply the
following information on or prior to the date on which it becomes a Lender:


 


(a)           the jurisdiction
of its Facility Office; and


 


(b)          any other
information that the Agent may reasonably require for such purpose.


 


Each Lender shall promptly
notify the Agent of any change to the information provided by it pursuant to
this paragraph.


 


5             The percentages of each Lender
for the purpose of the rates of charge of each Reference Bank for shall be
determined by the Agent based upon the information supplied to it pursuant to
paragraph 4 above and on the assumption that, unless a Lender notifies the
Agent to the contrary, each Lender’s obligations in relation to cash ratio
deposits are the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its Facility
Office.


 


6             The Agent shall have no
liability to any person if such determination results in an Additional Cost
Rate which over or under compensates any Lender and shall be entitled to assume
that the information provided by any Lender or Reference Bank pursuant to
paragraphs 3 and 4 above is true and correct in all respects.


 


7             The Agent shall distribute the
additional amounts received as a result of the Mandatory Cost to the Lenders on
the basis of the Additional Cost Rate for each Lender based on the information
provided by each Lender and each Reference Bank pursuant to paragraphs 3 and 4
above.


 


8             Any determination by the Agent
pursuant to this Schedule in relation to a formula, the Mandatory Cost, an
Additional Cost Rate or any amount payable to a Lender shall, in the absence of
manifest error, be conclusive and binding on all Parties.


 


86

















 


9             The Agent may from time to
time, after consultation with the Borrower and the Lenders, determine and
notify to all Parties any amendments which are required to be made to this
Schedule in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any case, any other
authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all Parties.


 


87

















 


Schedule 5

Form of Transfer Certificate(1)


 


	
  To:

  	
  [·] as Agent

  	 

	 
	
  Copy to:

  	
  Luxottica Group S.p.A.

  
	 
	
  From:

  	
  [The Existing
  Lender] (the “Existing Lender”)
  and [The New Lender] (the “New Lender”)

  
					



 


Dated:


 


Dear Sirs,


 


Luxottica Group S.p.A. Euro 300,000,000 Facility Agreement
dated [•]

(the “Agreement”)


 


1             We refer to the Agreement.
This is a Transfer Certificate. Terms defined in the Agreement have the same
meaning in this Transfer Certificate unless given a different meaning in this
Transfer Certificate.


 


2             We refer to Clause 23.5
(Procedure for transfer):


 


(a)           The Existing
Lender and the New Lender agree to the Existing Lender transferring to the New
Lender by assignment, assumption and release any of its rights or obligations (cessione dei crediti con accollo liberatorio di
obbligazioni) all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule in accordance with Clause
23.5 (Procedure for transfer).


 


(b)          The proposed
Transfer Date is [•].


 


(c)           The Facility
Office and address, fax number and attention details for notices of the New
Lender for the purposes of Clause 31.2 (Addresses) are set out in the Schedule.


 


3             The New Lender expressly
acknowledges the limitations on the Existing Lender’s obligations set out in
paragraph 23.4.3.


 


4             This Transfer Certificate and
any non- contractual obligations arising out of or in connections with it are
governed by Italian law.


 





(1) To be executed by
exchange of correspondence


 


88

















 


The Schedule

Commitment/rights and obligations to be transferred


 


[insert relevant details]


 


[Facility Office address, fax number and attention
details for notices and account details for payments,]


 


	
  [EXISTING
  LENDER]

  	
   

  	 

	 
	
   

  	
   

  
	 
	
   

  	
   

  
	
   

  	
   

  	 

	
  By:

  	
   

  	 

	 
	
   

  	
   

  
	 
	
   

  	
   

  
	 
	
  [NEW
  LENDER]

  	
   

  
	 
	
   

  	
   

  
	 
	
   

  	
   

  
	
   

  	
   

  	 

	
  By:

  	
   

  	 

					



 


 


This Transfer Certificate is
accepted by the Agent and the Transfer Date is confirmed as [·].


 


	 
	
  [AGENT]

  	
   

  
	 
	
   

  	
   

  
	 
	
   

  	
   

  
	
   

  	
   

  	 

	
  By:

  	
   

  	 

					



 


89

















 


Schedule 6

Form of Compliance Certificate


 


	
  To:

  	
  [·] as Agent

  	 

	 
	
  From:

  	
  Luxottica Group S.p.A.

  
					



 


Dated:


 


Dear Sirs,


 


Luxottica Group S.p.A. Euro 300,000,000 Facility Agreement dated
[•]
  (the “Agreement”)


 


1             We refer to the Agreement.
This is a Compliance Certificate. Terms defined in the Agreement have the same
meaning when used in this Compliance Certificate unless given a different
meaning in this Compliance Certificate.


 


2             We confirm that we are in
compliance with the financial ratios set out at paragraph 20.2 (Financial
condition) of the Agreement and that:


 


2.1         Consolidated Total Net Debt in
respect of [·] is [·].


 


2.2         Consolidated EBITDA in respect
of [·] is [·].


 


2.3         Consolidated Net Finance
Charges are [·].


 


3             [We confirm that no Default is
continuing.]*


 


 


	
  Signed:

  	
   

  	
   

  	
  Signed:

  
	
  Director

  	
   

  	
  Director

  
	
  of

  	
   

  	
  of

  
	
  [Company]

  	
   

  	
  [Company]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [for and on behalf of

  	
   

  	
  [for and on behalf of

  
	
  [name of auditors of the Company]**

  	
   

  	
  [name of auditors of the Company]**

  



 






*             If this statement cannot be
made, the certificate should identify any Default that is continuing and the
steps, if any, being taken to remedy it.


 


**          Only to be signed by auditors
where certificate is being supplied with Consolidated Financial Statements


 


90
















 


Schedule
8

Confidentiality Undertaking


 


[Letterhead of Existing Lender]


 


To:


 


	
   

  	
  [insert name of Potential Lender]

  



 


	
  Re:

  	
  The Facilities

  



 


	
  Borrower:  

  	
   

  
	
  Amount:  

  	
   

  
	
  Agent:

  	
   

  



 


Dear Sirs,


 


We understand that you are considering participating in the Facilities.
In consideration of us agreeing to make available to you certain information,
by your signature of a copy of this letter you agree as follows:


 


1                                      Confidentiality Undertaking


 


You undertake:


 


(a)                                to keep the Confidential
Information confidential and not to disclose it to anyone except as provided
for by paragraph 2 below and to ensure that the Confidential Information is
protected with security measures and a degree of care that would apply to your
own confidential information;


 


(b)                               to keep confidential and not
disclose to anyone the fact that the Confidential Information has been made
available or that discussions or negotiations are taking place or have taken
place between us in connection with the Facilities;


 


(c)                                to use the Confidential
Information only for the Permitted Purpose;


 


(d)                               to use all reasonable
endeavours to ensure that any person to whom you pass any Confidential
Information (unless disclosed under paragraph 2(b) below) acknowledges and
complies with the provisions of this letter as if that person were also a party
to it; and


 


(e)                                not to make enquiries of any
member of the Group or any of their officers, directors, employees or
professional advisers relating directly or indirectly to the Facilities.


 


 


92

















 


2                                      Permitted Disclosure


 


We agree that you
may disclose Confidential Information:


 


(a)                                to members of the Participant
Group and their officers, directors, employees and professional advisers to the
extent necessary for the Permitted Purpose and to any auditors of members of
the Participant Group;


 


(b)                               where requested or required by
any court of competent jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the rules of
any stock exchange on which the shares or other securities of any member of the
Participant Group are listed or (iii) where required by the laws or
regulations of any country with jurisdiction over the affairs of any member of
the Participant Group; or


 


(c)                                with the prior written consent
of us and the Borrower.


 


3                                      Notification of Required or Unauthorised Disclosure


 


You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2(b) or upon becoming
aware that Confidential Information has been disclosed in breach of this
letter.


 


4                                      Return of Copies


 


If we so request in writing, you shall return all Confidential
Information supplied to you by us and destroy or permanently erase all copies
of Confidential Information made by you and use all reasonable endeavours to
ensure that anyone to whom you have supplied any Confidential Information
destroys or permanently erases such Confidential Information and any copies
made by them, in each case save to the extent that you or the recipients are
required to retain any such Confidential Information by any applicable law, rule or
regulation or by any competent judicial, governmental, supervisory or
regulatory body or in accordance with internal policy, or where the
Confidential Information has been disclosed under paragraph 2(b) above.


 


5                                      Continuing Obligations


 


The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you and us.
Notwithstanding the previous sentence, the obligations in this letter shall
cease (a) if you become a party to or otherwise acquire (by assignment or
sub participation) an interest, direct or indirect in the Facilities or (b) 12
months after you have returned all Confidential Information supplied to you by
us and destroyed or permanently erased all copies of Confidential Information
made by you (other than any such Confidential Information or copies which have
been disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or which,
pursuant to paragraph 4 above, are not required to be returned or destroyed).


 


6                                      No Representation; Consequences of Breach, etc.


 


You acknowledge and agree that:


 


(a)                                neither we nor any of our
officers, employees or advisers (each a “Relevant Person”)
(i) make any representation or warranty, express or implied, as to, or 


 


93

















 


assume any responsibility for, the
accuracy, reliability or completeness of any of the Confidential Information or
any other information supplied by us or any member of the Group or the
assumptions on which it is based or (ii) shall be under any obligation to
update or correct any inaccuracy in the Confidential Information or any other
information supplied by us or any member of the Group or be otherwise liable to
you or any other person in respect to the Confidential Information or any such
information; and


 


(b)                               we or members of the Group may
be irreparably harmed by the breach of the terms of this letter and damages may
not be an adequate remedy; each Relevant Person or member of the Group may be
granted an injunction or specific performance for any threatened or actual
breach of the provisions of this letter by you.


 


7                                      No Waiver; Amendments, etc.


 


This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject of this
letter. No failure or delay in exercising any right, power or privilege under
this letter will operate as a waiver thereof nor will any single or partial exercise
of any right, power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privileges under this letter. The terms
of this letter and your obligations under this letter may only be amended or
modified by written agreement between us.


 


8                                      Inside Information


 


You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation relating to insider dealing
and you undertake not to use any Confidential Information for any unlawful
purpose.


 


9                                      Nature of Undertakings


 


The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given for the
benefit of the Borrower and each other member of the Group.


 


10                               Governing Law and Jurisdiction


 


This letter (including the agreement constituted by your
acknowledgement of its terms) and any non - contractual obligations arising out
of or in connection with it shall be governed by and construed in accordance
with Italian law and the parties submit to the non-exclusive jurisdiction of
the courts of Milan.


 


11                                Definitions


 


In this letter (including the acknowledgement set out below):


 


“Confidential Information” means any
information relating to the Borrower, the Group, and the Facilities including,
without limitation, the information memorandum, provided to you by us or any of
our affiliates or advisers, in whatever form, and includes information given
orally and any document, electronic file or any other way of representing or
recording information which contains or is derived or copied from such
information but excludes 


 


94

















 


information that (a) is or becomes public knowledge other than as
a direct or indirect result of any breach of this letter or (b) is known
by you before the date the information is disclosed to you by us or any of our
affiliates or advisers or is lawfully obtained by you after that date, other
than from a source which is connected with the Group and which, in either case,
as far as you are aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality;


 


“Group” means the Borrower and each of
its holding companies and subsidiaries and each subsidiary of each of its
holding companies;


 


“Participant Group” means you, each of
your holding companies and subsidiaries and each subsidiary of each of your
holding companies; and


 


“Permitted Purpose” means considering
and evaluating whether to enter into the Facilities.


 


Please acknowledge your agreement to the above by signing and returning
the enclosed copy.


 


Yours faithfully


 


 


	
   

  	
   

  
	
   

  	
   

  
	
  For and on behalf of

  	
   

  
	
  [EXISTING LENDER]

  	
   

  



 


	
  To:

  	
  [Existing Lender]

  
	
   

  	
  The Borrower and each other member of the Group

  



 


We acknowledge and agree to the above:


 


 


	
   

  	
   

  
	
   

  	
   

  
	
  For and on behalf of

  	
   

  
	
  [POTENTIAL LENDER]

  	
   

  



 


95

















 


Schedule 9

Timetables


 


	
   

  	
   

  	
  Loans to

  Borrower

  
	
  Delivery of a duly completed Utilisation Request (Clause 5.1
  (Delivery of a Utilisation Request) or a Selection Notice (Clause 9.1
  (Selection of Interest Periods))

  	
   

  	
  U-4 

  9.30 a.m.

  
	
  Agent notifies the Lenders of the Loan in accordance with Clause 5.4
  (Lenders’ participation)

  	
   

  	
  U-3 

  1.00 p.m.

  
	
  EURIBOR is fixed

  	
   

  	
  Quotation Day as of 

  11.00 a.m.

  



 


“U” = date of utilisation


 


“U - X” = X Business Days prior to date of utilisation


 


96
















 


Schedule 12

Additional Guarantors


 


Part 1

Conditions Precedent required to be delivered by an Additional Guarantor


 


1                                      An Accession
Letter, duly executed by the Additional Guarantor and the Borrower.


 


2                                      A copy of the
constitutional documents of the Additional Guarantor.


 


3                                      If required by
law, regulation or by the constitutional documents, a copy of a resolution of
the board of directors of the Additional Guarantor:


 


(a)                                approving the terms of, and
the transactions contemplated by, the Accession Letter and the Finance
Documents and resolving that it execute the Accession Letter;


 


(b)                               authorising a specified person
or persons to execute the Accession Letter on its behalf; and


 


(c)                                authorising a specified person
or persons, on its behalf, to sign and/or despatch all other documents and
notices to be signed and/or despatched by it under or in connection with the
Finance Documents.


 


4                                      A specimen of the
signature of each person authorised by the resolution referred to in paragraph
3 above.


 


5                                      If required by
law, regulation or by the constitutional documents, a copy of a resolution
signed by all the holders of the issued shares of the Additional Guarantor,
approving the terms of, and the transactions contemplated by, the Finance
Documents to which the Additional Guarantor is a party.


 


6                                      A certificate of
the Additional Guarantor (signed by a director) confirming that guaranteeing an
amount of indebtedness equal to the higher of (a) the Total Commitments
and (b) the maximum amount it is permitted to guarantee under any applicable
law or regulation would not cause any borrowing, guaranteeing or similar limit
binding on it to be exceeded and would constitute its legal, valid and binding
obligations.


 


7                                      A certificate of
an authorised signatory of the Additional Guarantor certifying that each copy
document listed in this Part 1 of Schedule 12 is correct, complete and in
full force and effect as at a date no earlier than the date of the Accession
Letter.


 


8                                      A copy of any
other Authorisation or other document, opinion or assurance which the Agent
considers to be necessary in connection with the entry into and performance of
the transactions contemplated by the Accession Letter or for the validity and
enforceability of any Finance Document.


 


9                                      If available, the
latest audited financial statements of the Additional Guarantor.


 


10                               A legal opinion
in form and substance acceptable to the Agent (acting reasonably) addressed to
the Lenders confirming the due capacity and authority of the Additional
Guarantor to enter into the Accession Letter and that the obligations assumed
by it thereunder constitute its legal, valid and binding obligations.


 


100

















 


Part 2

Form of Accession Letter


 


	
  To:

  	
  [·] as Agent

  
	
  From:

  	
  [Subsidiary] and Luxottica Group S.p.A.

  



 


Dated:


 


Dear Sirs,


 


Luxottica
Group S.p.A. Euro 300,000,000 Facility Agreement dated [·]

(the “Agreement”)


 


1                                      We refer to the
Agreement. This is an Accession Letter. Terms defined in the Agreement have the
same meaning in this Accession Letter unless given a different meaning in this
Accession Letter.


 


2                                      [·] agrees to
become an Additional Guarantor and to be bound by the terms of the Agreement as
an Additional Guarantor pursuant to Clause 17.11 (Additional Guarantors) of the
Agreement. [·] is
a company duly incorporated under the laws of [name of
relevant jurisdiction].


 


3                                      [Subsidiary’s] administrative details are as follows:


 


Address: [·]


 


Fax No: [·]


 


Attention: [·]


 


4                                      This Accession
Letter and any non - contractual obligations arising out of or in connection
with it are governed by Italian law.


 


	
  Luxottica Group S.p.A.

  	
  [Subsidiary]

  



 


101

















 


Signatures


 


 


	
  The Borrower

  	
   

  
	
  LUXOTTICA GROUP S.p.A.

  	
   

  
	
   

  	
   

  
	
  /s/ Marco Bigatti

  	
   

  
	
  By: Marco Bigatti

  	
   

  
	
  Address:

  	
  Via Cantu, 2, 20123, Milan, Italy

  	
   

  
	
  Fax:

  	
  +39 02
  86994093/+390286334094

  	
   

  
	
  Attention:

  	
  Enrico Cavatorta/Marco Bigatti

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  The Original Guarantors

  	
   

  
	
  LUXOTTICA U.S. HOLDINGS CORP.

  	
   

  
	
   

  	
   

  
	
  /s/ Marco Bigatti

  	
   

  
	
  By: Marco Bigatti

  	
   

  
	
  Address:

  	
  44, Harbour Park Drive, Port Washington, New York, 11050, USA

  
	
  Fax:

  	
  +1 516 9183151/+1 516 4849010/+1 516 9183151

  
	
  Attention:

  	
  Vito Giannola/Michael Boxer/Dan Socci

  
	
   

  	
   

  
	
   

  	
   

  
	
  LUXOTTICA S.r.l.

  	
   

  
	
   

  	
   

  
	
  /s/ Marco Bigatti

  	
   

  
	
  By: Marco Bigatti

  	
   

  
	
  Address:

  	
  Via Cantu, 2, 20123, Milan, Italy

  
	
  Fax:

  	
  +39 02 86994093/+390286334094

  
	
  Attention:

  	
  Enrico Cavatorta/Marco Bigatti

  



 


102

















 


	
  The Agent

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

  
	
   

  
	
  /s/ Roberto Turati

  	
   

  
	
  By: Roberto Turati

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Piazzetta Enrico Cuccia 1, 20121 Milano, Italy

  	
   

  
	
  Fax:

  	
  +39 02 8829 745

  	
   

  
	
  Attention:

  	
  Stefania Peverelli/Gianluca Pagano

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The Mandated Lead Arrangers and the Bookrunners

  	
   

  
	
  CALYON
  S.A., MILAN BRANCH

  	
   

  
	
   

  	
   

  
	
  /s/ Alberto Bezzi

  	
   

  
	
  By: Alberto Bezzi

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Via Brera 21, 20121 Milano, Italy

  	
   

  
	
  Fax:

  	
  00 39 02 72303 203

  	
   

  
	
  Attention:

  	
  Giovanni Tardivo

  	
   

  
	
   

  	
  Alberto Bezzi

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  DEUTSCHE
  BANK S.P.A.

  	
   

  
	
   

  	
   

  
	
  /s/ Aldo De Girolamo

  	
   

  
	
  By: Aldo De Girolamo

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Via Melchiorre Gioia 8, 20124 Milan, Italy

  	
   

  
	
   

  	
  Piazza del Calendario 3, 20126 Milan, Italy

  	
   

  
	
  Fax:

  	
  +39 02 40243120

  	
   

  
	
   

  	
  +39 02 40245703

  	
   

  
	
  Attention:

  	
  Aldo De Girolamo

  	
   

  
	
   

  	
  Giuliano Galdino

  	
   

  
	
   

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

  



 


103

















 


	
  /s/ Elena Laneri

  	
   

  
	
  By: Elena Laneri

  	
   

  
	
  Address:

  	
  Piazzetta Enrico Cuccia 1, 20121 Milano, Italy

  	
   

  
	
  Fax:

  	
  +39 02 8829 277

  	
   

  
	
  Attention:

  	
  Middle Office Crediti

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UNICREDIT CORPORATE BANKING
  S.P.A.

  	
   

  
	
   

  	
   

  
	
  /s/ Federico
  Giordano

  	
   

  
	
  By: Federico Giordano

  	
   

  
	
  Address:

  	
  Via Cerva 24, 20122 Milano, Italy

  	
   

  
	
  Fax:

  	
  02/77673355

  	
   

  
	
  Attention:

  	
  Sig. Guglielmo Lucariello

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  The Original Lenders

  	
   

  
	
  CALYON
  S.A., MILAN BRANCH

  	
   

  
	
   

  	
   

  
	
  /s/ Alberto Bezzi

  	
   

  
	
  By: Alberto Bezzi

  	
   

  
	
  Address:

  	
  Via Brera 21, 20121 Milano, Italy

  	
   

  
	
  Fax:

  	
  00 39 02 72303 203

  	
   

  
	
  Attention:

  	
  Giovanni Tardivo

  	
   

  
	
   

  	
  Alberto Bezzi

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  DEUTSCHE
  BANK S.P.A.

  	
   

  
	
   

  	
   

  
	
  /s/ Aldo De Girolamo

  	
   

  
	
  By: Aldo De Girolamo

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Via Melchiorre Gioia 8, 20124 Milan, Italy

  	
   

  
	
   

  	
  Piazza del Calendario 3, 20126 Milan, Italy

  	
   

  



 


104

















 


	
  Fax:

  	
  +39 02 40243120

  	
   

  
	
   

  	
  +39 02 40245703

  	
   

  
	
  Attention:

  	
  Aldo De Girolamo

  	
   

  
	
   

  	
  Giuliano Galdino

  	
   

  
	
   

  
	
   

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

  
	
   

  
	
  /s/ Elena Laneri

  	
   

  
	
  By: Elena Laneri

  	
   

  
	
  Address:

  	
  Piazzetta Enrico Cuccia 1, 20121 Milano, Italy

  	
   

  
	
  Fax:

  	
  +39 02 8829 277

  	
   

  
	
  Attention:

  	
  Middle Office Crediti

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  UNICREDIT CORPORATE BANKING
  S.P.A.

  	
   

  
	
  /s/ Federico
  Giordano

  	
   

  
	
  By: Federico Giordano

  	
   

  
	
  Address:

  	
  Via Cerva 24, 20122 Milano, Italy

  	
   

  
	
  Fax:

  	
  02/77673355

  	
   

  
	
  Attention:

  	
  Sig. Guglielmo Lucariello

  	
   

  



 


105