Exhibit 4.1


 


Conformed Copy


 


Dated
12 October 2007


 


 


LUXOTTICA
GROUP S.p.A.
 LUXOTTICA U.S.
HOLDINGS CORP.

as Borrowers


 


 


and


 


 


Citibank N.A., New York / Citibank N.A., Milan Branch


 


Intesa Sanpaolo S.p.A.


 


Bayerische Hypo- und Vereinsbank AG, Milan Branch (part of UniCredit

Markets and Investment Banking) / Bayerische Hypo- und Vereinsbank AG,

New York Branch (part of UniCredit Markets and Investment Banking)


 


The Royal Bank of Scotland plc


 


as Underwriters


 


 


Citigroup Global Markets Limited


 


Intesa Sanpaolo S.p.A.


 


Bayerische Hypo- und Vereinsbank AG, Milan Branch (part of UniCredit

Markets and Investment Banking)


 


The Royal Bank of Scotland plc


 


as Bookrunners


 


 


and


 


 


Bayerische Hypo- und Vereinsbank AG, New York Branch (part of UniCredit

Markets and Investment Banking)


 


as
Agent


 


 


TERM FACILITY
AGREEMENT


 


U.S.$1,500,000,000


 





 


Ref: CP


Studio Legale Associato 


in associazione con Linklaters LLP


 

















 


Table of Contents


 


	
  Contents

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1

  	
  Definitions and Interpretation

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
  The Facilities

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
  Purpose

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  Conditions of Utilisation

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
  Utilisation

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
  Repayment

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  7

  	
  Prepayment and Cancellation

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
  Interest

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
  Interest Periods

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
  Changes to the Calculation of Interest

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
  Fees

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
  Tax Gross-up and Indemnities

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  13

  	
  Increased Costs

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  14

  	
  Other Indemnities

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  15

  	
  Mitigation by the Lenders

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  16

  	
  Costs and Expenses

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  17

  	
  Guarantee and Indemnity

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  18

  	
  Representations

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  19

  	
  Information Undertakings

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  20

  	
  Financial Covenants

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
  21

  	
  General Undertakings

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  22

  	
  Events of Default

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  23

  	
  Changes to the Lenders

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  24

  	
  Confidentiality

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  25

  	
  Changes to the Obligors

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  26

  	
  Role of the Agent

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  27

  	
  Conduct of Business by the Finance Parties

  	
   

  	
  72

  



 


i

















 


	
  28

  	
  Sharing Among the Finance Parties

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  29

  	
  Payment Mechanics

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  30

  	
  Set-off

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  31

  	
  Notices

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  32

  	
  Calculations and Certificates

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  33

  	
  Partial Invalidity

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  34

  	
  Remedies and Waivers

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  35

  	
  Amendments and Waivers

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
  36

  	
  Counterparts

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  37

  	
  USA Patriot Act

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  38

  	
  Governing Law

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  39

  	
  Enforcement

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  40

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  41

  	
  US provisions

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1 The Parties

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
  Part 1 The Obligors

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
  Part 2 The Facility D Lenders

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  Part 3 The Facility E Lenders

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 2 Conditions Precedent to initial
  Utilisation

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 3 Requests

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  Part 1 Utilisation Request

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  Part 2 Selection Notice

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 4 Mandatory Cost Formulae

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5 Form of Transfer Certificate

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 6 Form of Compliance Certificate

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 7 Existing Security

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 8 Confidentiality Undertaking

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 9 Timetables

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 10 Authorised Signatories

  	
   

  	
  104

  



 


ii

















 


	
  Schedule 11 Existing Indebtedness

  	
   

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 12 Additional Guarantors

  	
   

  	
  107

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
  Part 2 Form of Accession Letter

  	
   

  	
  109

  



 


iii

















 


This
Agreement is made
in Lugano on 12 October  2007 and between:


 


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


 


(2)                              LUXOTTICA U.S. HOLDINGS CORP. as borrower (the “US Borrower”
and, together with the Italian Borrower, the “Borrowers”);


 


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


 


(4)                              CITIGROUP GLOBAL MARKETS LIMITED,
INTESA SANPAOLO S.P.A., BAYERISCHE HYPO- UND VEREINSBANK AG, MILAN BRANCH (PART
OF UNICREDIT MARKETS AND INVESTMENT BANKING), AND THE ROYAL BANK OF SCOTLAND
PLC as bookrunners
(whether acting individually or together, the “Bookrunners”);


 


(5)                              CITIBANK N.A., NEW YORK, CITIBANK
N.A., MILAN BRANCH, INTESA SANPAOLO S.P.A., BAYERISCHE HYPO - UND VEREINSBANK
AG, MILAN BRANCH (PART OF UNICREDIT MARKETS AND INVESTMENT BANKING), BAYERISCHE
HYPO - UND VEREINSBANK AG, NEW YORK BRANCH (PART OF UNICREDIT MARKETS AND
INVESTMENT BANKING) AND THE ROYAL BANK OF SCOTLAND PLC as underwriters (whether acting individually or together,
the “Underwriters”);


 


(6)                              BANC OF AMERICA SECURITIES
LIMITED, BNP PARIBAS SA, CALYON S.A., CITIGROUP GLOBAL MARKETS LIMITED, INTESA
SANPAOLO S.P.A., BAYERISCHE HYPO- UND VEREINSBANK AG, MILAN BRANCH (PART OF
UNICREDIT MARKETS AND INVESTMENT BANKING) AND THE ROYAL BANK OF SCOTLAND PLC  as
mandated lead arrangers (whether acting individually or together, the “Mandated Lead  Arrangers”);


 


(7)                              THE FINANCIAL INSTITUTIONS listed in Part 2, Part 3 and Part 4 of Schedule 1 (The
Parties) as lenders (the “Lenders”); and


 


(8)                              BAYERISCHE HYPO- UND VEREINSBANK
AG, NEW YORK BRANCH (PART OF UNICREDIT MARKETS AND INVESTMENT BANKING), 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 by the US Borrower
(directly or indirectly through the SPV) of the Target Group;


 


1

















 


“Acquisition Documents” means all documents setting out the
agreement between the US Borrower or, as the case may be SPV with respect to
the Acquisition;


 


“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 Borrowers and the Agent relating to the
payment by the Borrowers 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 (Creditor’s 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:


 


(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 any 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.


 


2

















 


“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 Italian Borrower and/or the US Borrower (as the case
may be), as is from time to time communicated by the Italian Borrower in
writing to the Agent;


 


“Availability Period” means the period from and including the
Signing Date to and including the 30 June 2008 or, if earlier, the closing date
of the Acquisition.


 


“Available Commitment” means, in relation to a Facility, a
Lender’s Commitment under that Facility minus:


 


(a)                                the Base Currency Amount of its participation in any
outstanding Loans under that Facility; and


 


(b)                               in relation to any proposed Utilisation, the Base
Currency 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
that Facility on or before the proposed Utilisation Date;


 


“Available Facility” means, in relation to a Facility, the
aggregate for the time being of each Lender’s Available Commitment in respect
of that Facility;


 


“Bank Guarantee” means any guarantees or performance bonds
required to be issued by an Eligible Deposit Bank in the ordinary course of
either of the Borrowers’ business and upon terms usual for such business;


 


“Base Currency” means U.S.$.


 


“Base Currency Amount” means, in relation to a Loan, the
amount specified in the Utilisation Request delivered by a Borrower for that
Loan adjusted to reflect any repayment, prepayment, consolidation or division
of the Loan;


 


“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 New York, London and Milan and:


 


3

















 


(a)                                (in relation to a date for payment or purchase of any sum
denominated in a currency other than the euro) the principal financial centre
of the country of such currency; or


 


(b)                               (in relation to any date for payment or purchase of a sum
denominated in the euro) on which TARGET is open for settlement in euro;


 


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


 


“Cash Equivalent Investments” 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 Facility D Commitment or a Facility E
Commitment;


 


“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 Italian 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;


 


“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: (i) the Target Group; and (ii) any
other 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: (i) the Target Group
; and (ii) any other 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


 


4

















 


making
of any determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default;


 


“Documento di Sintesi” has the meaning given to such
expression in the Bank of Italy’s ninth update of the Istruzioni
di Vigilanza in force from 1 October 2003;


 


“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 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


 


5

















 


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 that would have a Material Adverse Effect; (vi) the
complete or partial withdrawal of any U.S. Group Company or any ERISA Affiliate
from a Multiemployer Plan; and (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) that would
have a Material Adverse Effect;


 


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


 


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


 


“Facility” means Facility D or Facility E;


 


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


 


“Facility D Commitment”
means:


 


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


 


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


 


to
the extent not cancelled, reduced (other than, for the avoidance of doubt, by
way of Utilisation) or transferred by it under this Agreement;


 


“Facility D Lender” means:


 


(a)                                a Lender listed in Part 2 of Schedule 1 (The Parties);
and


 


(b)                               any bank or financial institution which has become a
Lender under Facility D in accordance with Clause 23 (Changes to the Lenders).


 


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


 


“Facility D Repayment Date” means each of the dates specified
in Clause 6.1 (Repayment of Facility D Loans) as Facility D Repayment Dates,
but if any such date is not a Business Day, then that Facility D Repayment Date
shall be deemed to be the immediately succeeding Business Day;


 


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


 


6

















 


“Facility E Commitment” means:


 


(a)                                in relation to a Lender, the amount in U.S.$ set opposite
its name under the heading “Facility E Commitment” in Part 3 of Schedule 1 (The
Parties) and the amount of any other Facility E Commitment transferred to it
under this Agreement; and


 


(b)                               in relation to any other Lender, the amount in U.S.$ of
any Facility E Commitment transferred to it under this Agreement,


 


to
the extent not cancelled, reduced (other than, for the avoidance of doubt, by
way of Utilisation) or transferred by it under this Agreement;


 


“Facility E Lender” means:


 


(a)                                a Lender listed in Part 3 of Schedule 1 (The Parties);
and


 


(b)                               any bank or financial institution which has become a
Lender under Facility E in accordance with Clause 23 (Changes to the Lenders);


 


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


 


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


 


“Facility Office” means


 


(a)                                in relation to an existing Lender, the office or offices
notified by that 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


 


(b)                               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 (FAS) Statement
of Standard No. 95 “Statement of Cashflows” 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 Italian Borrower;


 


“Finance Lease Debt” means any Financial Indebtedness falling
within paragraph (d) of the definition of Financial Indebtedness;


 


“Finance Party” means any of the Agents, the Bookrunners, the
Underwriters or a 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);


 


7

















 


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


 


(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, (in the case of the Borrowers) US GAAP or any
other generally accepted accounting principles as in effect from time to time
in the United States of America including the International Accounting
Standards and IFRS or (in the case of Luxottica S.r.l.) Italian GAAP or any
other generally accepted accounting principles as in effect from time to time
in the Republic of Italy including the International Accounting Standards and
IFRS;


 


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


 


“Group” means the Italian Borrower and its Subsidiaries for
the time being (and, for the avoidance of doubt, following the Acquisition “Group” shall include the 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


 


8

















 


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;


 


“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 generally accepted accounting principles
in Italy;


 


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


 


“Lender” means a Facility D Lender or a Facility E Lender
which in each case has not ceased to be a Party in accordance with the terms of
this Agreement;


 


“LIBOR” means, in relation to any Loan in U.S.$:


 


(a)                                the applicable Screen Rate; or


 


(b)                               (if no Screen Rate is available for the currency or
Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London interbank market,


 


as
of the Specified Time on the Quotation Day for the offering of deposits in
U.S.$ and for a period comparable to the Interest Period for that Loan;


 


“LMA” means the Loan Market Association;


 


“Loan” means a Facility D Loan or a Facility E 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:


 


(a)                                0.40 per cent per annum for the period commencing on the
Signing Date up to and including the date on which the Consolidated Quarterly
Financial Statements for the quarter ending on or prior to 30 June 2008 are
delivered;


 


(b)                               thereafter, 0.40 per cent per annum provided that if the
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


 


9

















 


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 this Agreement (excluding for the avoidance of doubt
the Consolidated Quarterly Financial Statements for the quarters ending on or
prior to 31 March 2008 (included)), is within the range set out below, then the
Margin shall be the percentage per annum set out opposite such range in the
margin grid table below:


 


Margin Grid Table


 


	
  Ratio of Consolidated Net Debt to

  Consolidated EBITDA

  	
   

  	
  (per cent per annum)

  
	
   

  	
   

  	
   

  
	
  Equal
  to or greater than 3.0x

  	
   

  	
  0.40

  
	
   

  	
   

  	
   

  
	
  Equal
  to or greater than 2.5x but lower than 3.0x

  	
   

  	
  0.35

  
	
   

  	
   

  	
   

  
	
  Equal
  to or greater than 2.0x but lower than 2.5x

  	
   

  	
  0.30

  
	
   

  	
   

  	
   

  
	
  Equal
  to or greater than 1.5x but lower than 2.0x

  	
   

  	
  0.25

  
	
   

  	
   

  	
   

  
	
  Lower
  than 1.5x

  	
   

  	
  0.20

  



 


(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 in respect of such financial statements
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 0.40 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
Italian 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
Italian 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;


 


10

















 


(b)                               if a Subsidiary of the Italian 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;


 


(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 Italian 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 Italian 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 a Borrower or a Guarantor;


 


 “Original Financial
Statements” means:


 


(a)                                in relation to the Italian Borrower, the audited
Consolidated Financial Statements for its financial year ended 31 December
2006;


 


(b)                               in relation to the US Borrower, its audited financial
statements for its financial year ended 31 December 2006; and


 


(c)                                in relation to Luxottica S.r.l., its financial statements
for its financial year ended 31 December 2006;


 


 “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;


 


11

















 


“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);


 


“Pro-Forma Relevant Period” means the period from the date
the 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 the Acquisition is completed;


 


“Qualifying Lender” means:


 


(a)                                in relation to Facility E (with respect to Loans made or
to be made to the Italian Borrower), a bank or financial institution which, at
the date of this Agreement or, in the case of an assignee or transferee under
Clause 23 (Changes to the Lenders), at the date of such assignment or (as the
case may be) at the date of the relevant Transfer Certificate:


 


(i)                              is entitled to receive all payments under this Agreement
free of any withholding tax on account of income tax in Italy; and


 


(ii)                           is acting through a Facility Office in Italy; or


 


(iii)                        is incorporated or resident 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 with
respect to Facility E;


 


(b)                               in relation to Facility D (with respect to Loans made or
to be made to the US Borrower), a bank or financial institution which, at the
date of this Agreement or, in the case of assignee or transferee under Clause
23 (Changes to the Lenders), at the date of such assignment or (as the case may
be) at the date of the relevant Transfer Certificate:


 


(i)                              is entitled to receive all payments under this Agreement
free of any withholding tax on account of income tax in the United States of
America; or


 


(ii)                           is resident (as such term is defined in the appropriate
convention (a “Double Taxation Treaty”) between the government of the United
States of America and any other government for the avoidance of double taxation
and prevention of fiscal evasion with respect to taxes on income and capital
gains in a country with which the United States of America has an appropriate
Double Taxation Treaty giving residents in that country full exemption from
income tax on interest in the United States of America, is eligible for full
exemption from income tax on all payments received or to be received under this
Agreement under such double taxation treaty and participating through a
Facility Office that entitles it to receive all payments under this Agreement
free of any withholding tax on account of income tax in the United States of
America; and


 


(iii)                        has delivered to the Obligor (A) two original copies of
the United States Internal Revenue Service Form W-8BEN (or any successor form)
certifying that it is a resident of a foreign country with which the United
States has an income tax treaty and that it is entitled to exemption from
United States withholding tax with respect to all payments to be made to the
Lender


 


12

















 


under
the Finance Documents under such treaty, (B) two original copies of the United
States Internal Revenue Service Form W-8ECI (or any successor form) certifying
that the payments made pursuant to the Finance Documents are effectively
connected with the conduct by the Lender of a trade or business within the
United States, (C) two original copies of the United States Internal Revenue
Service Form W-9 (or any successor form) certifying that the Lender is a United
States person for United States federal income tax purposes or, (D) any other
applicable form prescribed by the Internal Revenue Service certifying as to the
Lender’s entitlement to exemption from or full refund of United States
withholding tax with respect to all payments to be made to the Lender under the
Finance Documents;


 


“Qualifying Shareholder” means:


 


(a)                                Leonardo Del Vecchio and any person with whom he is
connected (as that term is defined in Sections 839 (2), (6) and (7) of the
Income and Corporation Taxes Act 1988 of England and Wales) (together a “Qualifying Shareholder”);


 


(b)                               any company controlled by a Qualifying Shareholder; or


 


(c)                                any trust or other similar entity in which a Qualifying
Shareholder whether alone or together with one or more other Qualifying
Shareholders 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, in relation to any period for which an
interest rate is to be determined, two Business Days (with respect to London
and New York) before the first day of that 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 London offices of
Citibank N.A., Intesa Sanpaolo S.p.A., Bayerische Hypo- und Vereinsbank AG and
The Royal Bank of Scotland plc.


 


 “Relevant Interbank Market”
means in relation to euro, the European interbank market, and, in relation to
U.S.$, the London interbank market;


 


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


 


“Repayment Instalment” means each instalment for repayment of
the Facility D Loans referred to in Clause 6.1 (Repayment of Facility D Loans);


 


“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;


 


13

















 


(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”
means the British Bankers’ Association Interest Settlement Rate for the
relevant currency and period displayed on the appropriate page of the Telerate
screen. If the agreed page is replaced or service ceases to be available, the
Agent may specify another page or service displaying the appropriate rate after
consultation with the Italian Borrower and the Lenders;


 


 “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) in relation to Facility D or, as the case may be, Facility E;


 


“Signing Date” means the date of this Agreement.


 


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


 


“SPV” means Norma Acquisition Corp., a company incorporated
under the laws of the state of Washington, United States of America whose share
capital is 100 per cent owned and controlled, directly or indirectly by the US
Borrower;


 


 “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
Oakley Inc., a company incorporated under the laws of the state of Washington,
United States of America;


 


 “Target Group”
means Target, together with its Subsidiaries


 


“TARGET” means Trans-European Automated Real-time Gross
Settlement Express Transfer payment system;


 


14

















 


“TARGET Day” means any day on which TARGET 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 five years from
the Signing Date subject to Clause 6.3 (Extension
of Termination 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 Total Facility
D Commitments and the Total Facility E Commitments being U.S.$1,500,000,000 at
the date of this Agreement;


 


“Total Consideration” means the purchase price of Target and
the Target Group payable pursuant to the Acquisition Documents;


 


“Total Facility D Commitments” means the aggregate of the
Facility D Commitments, being U.S.$1,000,000,000 at the date of this Agreement;


 


“Total Facility E Commitments” means the aggregate of the
Facility E Commitments, being U.S.$500,000,000 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 Italian 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 a 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 value added tax as provided for in the Value
Added Tax Act 1994 and any other tax of a similar nature.


 


15

















 


1.2                            Construction


 


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


 


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


 


(ii)          the “Borrower” shall
be construed as a reference to (in relation to Facility E) the Italian Borrower
and (in relation to Facility D) the US Borrower;


 


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


 


(iv)         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;


 


(v)          “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;


 


(vi)         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;


 


(vii)        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;


 


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


 


(ix)          a time of day is a reference to New York time.


 


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


 


“U.S.$” and “USD” denote
lawful currency of the United States of America.


 


1.4                            Third
party rights


 


1.4.1                   Unless expressly provided to the contrary in a Finance
Document, a person who is not a Party has no right under the Contracts (Rights
of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of
this Agreement.


 


1.4.2                   Notwithstanding any term of any Finance Document, the
consent of any person who is not a Party is not required to rescind or vary
this Agreement at any time.


 


16
















 


Section 2

The Facilities


 


2                                      The
Facilities


 


2.1                            The
Facilities


 


Subject
to the terms of this Agreement:


 


2.1.1                   the Facility D Lenders make available to the US Borrower
a USD term loan facility in an aggregate amount equal to the Total Facility D
Commitments; and


 


2.1.2                   the Facility E Lenders make available to the Italian
Borrower a USD term loan facility in an aggregate amount equal to the Total
Facility E 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.


 


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 Borrowers shall apply all amounts borrowed
by it under the Facilities towards funding directly or indirectly the Total
Consideration and any related transaction fees and costs.


 


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 Borrowers 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 Borrowers and the Lenders
promptly upon being so satisfied.


 


17

















 


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                   in the case of any Loan, 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


 


4.3.1                   A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation:


 


(i)                                  3 or more Facility D Loans would be outstanding; or


 


(ii)                               3 or more Facility E Loans would be outstanding.


 


4.3.2                   The Italian Borrower may not request that a Facility E
Loan be divided if, as a result of the proposed division, 6 or more Facility E
Loans would be outstanding.


 


4.3.3                   The US Borrower may not request that a Facility D Loan be
divided if, as a result of the proposed division, more than 6 Facility D Loans
would be outstanding.


 


18

















 


Section 3

Utilisation


 


5                                      Utilisation


 


5.1                            Delivery
of a Utilisation Request


 


A
Borrower may utilise a 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)                                  it identifies the Facility to be utilised;


 


(ii)                               the proposed Utilisation Date is a Business Day within
the Availability Period applicable to that Facility;


 


(iii)                            the currency and amount of the Utilisation comply with
Clause 5.3 (Currency and amount); and


 


(iv)                           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                            Currency
and amount


 


5.3.1                   The currency specified in a Utilisation Request must be
the Base Currency.


 


5.3.2                  The amount of the proposed Loan must be:


 


(i)                                  minimum of U.S.$25,000,000 or, if less, the Available
Facility; and


 


(ii)                               in any event such that its Base Currency Amount is less
than or equal to 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 (if any) 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 in respect of
the relevant Facility to the Available Facility of such Facility immediately
prior to making the Loan.


 


19

















 


Section 4

Repayment, Prepayment and Cancellation


 


6                                      Repayment


 


6.1                            Repayment
of Facility D Loans


 


6.1.1                   The US Borrower shall repay any Facility D Loan made to
it in instalments by repaying on each Facility D Repayment Date the amount set
out opposite each Facility D Repayment Date below:


 


	
  Facility D Repayment Date

  	
   

  	
  Repayment Instalment

  USD

  	
   

  
	
  12 October 2009

  	
   

  	
  50,000,000

  	
   

  
	
  12 January 2010

  	
   

  	
  50,000,000

  	
   

  
	
  12 April 2010

  	
   

  	
  50,000,000

  	
   

  
	
  12 July 2010

  	
   

  	
  50,000,000

  	
   

  
	
  12 October 2010

  	
   

  	
  50,000,000

  	
   

  
	
  12 January 2011

  	
   

  	
  50,000,000

  	
   

  
	
  12 April 2011

  	
   

  	
  50,000,000

  	
   

  
	
  12 July 2011

  	
   

  	
  50,000,000

  	
   

  
	
  12 October 2011

  	
   

  	
  50,000,000

  	
   

  
	
  12 January 2012

  	
   

  	
  50,000,000

  	
   

  
	
  12 April 2012

  	
   

  	
  50,000,000

  	
   

  
	
  12 July 2012

  	
   

  	
  50,000,000

  	
   

  
	
  12 October 2012

  	
   

  	
  50,000,000

  	
   

  
	
  14 January 2013*

  	
   

  	
  50,000,000

  	
  *

  
	
  12 April 2013*

  	
   

  	
  50,000,000

  	
  *

  
	
  12 July 2013*

  	
   

  	
  50,000,000

  	
  *

  
	
  14 October 2013*

  	
   

  	
  50,000,000

  	
  *

  
	
  10 January 2014**

  	
   

  	
  50,000,000

  	
  **

  
	
  14 April 2014**

  	
   

  	
  50,000,000

  	
  **

  
	
  14 July 2014**

  	
   

  	
  25,000,000

  	
  **

  
	
  10 October 2014**

  	
   

  	
  25,000,000

  	
  **

  



 


Repayment
Instalments marked with a * are subject to consent to a First Anniversary
Request (as defined in and in accordance with Clause 6.3 (Extension of
Termination Date).


 


20

















 


Repayment
Instalments marked with a ** are subject to consent to a Second Anniversary
Request (as defined in and in accordance with Clause 6.3 (Extension of
Termination Date).


 


6.1.2                   The US Borrower shall repay any other amounts outstanding
under Facility D on the Termination Date.


 


6.1.3                   If, in relation to any Facility D Repayment Date, the
aggregate amount of the Facility D Loans made to the US Borrower exceeds the
Repayment Instalment to be repaid by the US Borrower, the US Borrower may, if
it gives the Agent not less than five Business Days’ prior notice, select which
of those Facility D Loans will be wholly or partially repaid so that the
Repayment Instalment is repaid on the relevant Facility D Repayment Date in
full. The US Borrower may not make a selection if as a result more than one
Facility D Loan will be partially repaid.


 


6.1.4                   If the US Borrower fails to deliver a notice to the Agent
in accordance with paragraph 6.1.3 above, the Agent shall select the Facility D
Loans to be wholly or partially repaid.


 


6.1.5                   The US Borrower may not reborrow any part of Facility D
which is repaid.


 


6.2                            Repayment
of Facility E Loans


 


The
Italian Borrower shall repay any Facility E Loan made to it in full on the
Termination Date.


 


6.3                            Extension
of Termination Date


 


6.3.1                   The Italian Borrower may request that the Termination
Date for both Facilities be extended upon giving notice to the Agent no less
than 45 days and no more than 60 days prior to: (i) the first anniversary (a “First Anniversary Request”); and (ii) the
second anniversary (a “Second Anniversary
Request”) of the Signing Date.


 


6.3.2                   Subject to Clause 6.4 (Extension fee) below, following a request from the Italian
Borrower pursuant to paragraph 6.3.1 above, the Termination Date for a Lender’s
Commitment shall automatically be extended upon obtaining the consent of a
Lender (each a “Consenting Lender”):


 


(i)                                  to a First Anniversary Request, by a period of one year
(the “First Extension Period”)
starting on the original Termination Date; and


 


(ii)                               to a Second Anniversary Request, by an additional period
of one year following the expiry of the relevant First Extension Period
provided that a Lender may not consent to a Second Anniversary Request if it
has not consented to a First Anniversary Request in respect of the relevant
Facility,


 


in
each case such Lender’s consent to have been provided no later than the date
falling 30 days prior to the first or, as applicable, second anniversary of the
Signing Date.


 


6.3.3                   In the event that a Lender does not consent to a First
Anniversary Request or, following its consent to a First Anniversary Request,
does not consent a Second Anniversary Request, or, alternatively does not
provide its consent by the date falling 30 days prior to the first or, as
applicable, the second anniversary of the


 


21

















 


Signing Date (each a “Dissenting Lender”) then, subject to
paragraph  6.3.4 below, the relevant
Termination Date will not be extended and:


 


(i)                                  the Borrowers shall repay in full the portion of any
Dissenting Lender’s outstanding Loans; and


 


(ii)                               the Available Commitment of such Dissenting Lender shall
automatically be cancelled in full,


 


in relation to a First Anniversary Request,
upon the original Termination Date and in relation to a Second Anniversary
Request, upon the expiry of the First Extension Period, in each case pursuant
to paragraph 6.3.2 above.


 


6.3.4                   If the relevant Dissenting Lender does not consent to a
First Anniversary Request or does not provide its consent as set out in
paragraph 6.3.3 above:


 


(i)                                  the Italian Borrower, on behalf of the Borrowers, may
request that the relevant Dissenting Lender transfer the entirety or its
Commitments to a New Lender (for cash at par) pursuant to the procedure set out
in Clause 23.5 (Procedure for transfer) of this
Agreement; and


 


(ii)                               the New Lender will have the option of granting a
relevant First Anniversary Request or a Second Anniversary Request, as the case
may be, without requiring the consent of any other Lender.


 


6.3.5                   The Agent shall notify the Borrowers by notice to the
Italian Borrower in writing the names of the Consenting Lenders and/or the
Dissenting Lenders, as the case may be.


 


6.4                            Extension
fee


 


6.4.1                   Following a Lender’s consent to the extension of the
Termination Date pursuant to Clauses 6.3.2 above, the Borrowers shall pay to
the Agent (for the account of such Consenting Lender) an extension fee in an
aggregate amount equal to 0.025 per cent of the portion of such Lender’s
Commitment for which the Lender’s Termination Date shall be extended.


 


6.4.2                   Such extension fee shall be payable in full, with respect
to a First Anniversary Request or, as the case may be, a Second Anniversary
Request the next Business Day following the date upon which the Agent confirms
to the Italian Borrower pursuant to Clause 6.3.4 above that consent has been
obtained from all the Consenting Lenders to such First Anniversary Request or,
as the case may be, such Second Anniversary Request and that the extension of
the Termination Date has become effective with respect to each of the
Consenting Lenders.


 


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 such unlawfulness cannot
be resolved by the relevant Lender transferring its Commitment to a New Lender
for cash and at par (such New Lender agreeing to assume the Commitment at the
Borrowers’ request):


 


22

















 


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


 


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


 


7.1.3                   each Borrower shall repay that Lender’s participation in
the Loans made to that Borrower on the last day of the Interest Period for each
Loan occurring after the Agent has notified the Italian 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                            Involuntary  prepayment and cancellation


 


7.2.1                   If a Borrower is, or will be, required to pay to a
Lender:


 


(i)                                  a Tax Payment; or


 


(ii)                               an Increased Cost,


 


that
Borrower may, while the requirement continues,


 


(iii)                            give notice to the Agent requesting prepayment and
cancellation in respect of the relevant Lender; and


 


(iv)                           require that Lender to transfer its Commitment to one or
more Existing Lenders or to a New Lender.


 


7.2.2                   After notification under paragraph 7.2.1 above:


 


(i)                                  the relevant Borrower must repay or prepay the relevant
Lender’s share in each Loan made to it on the date specified in paragraph 7.2.3
below; and


 


(ii)                               the Commitments of that Lender will be immediately
cancelled.


 


7.2.3                   The date for repayment or prepayment of a Lender’s share
in a Loan will be:


 


(i)                                  the last day of the current Interest Period for that
Loan; or


 


(ii)                               if earlier, the date specified by the relevant Borrower
in its notification.


 


7.3                            Change
of control


 


7.3.1                   If (1) any person or group of persons (acting in concert)
other than a Qualifying Shareholder (the “New Shareholder(s)”)
has gained control of the Italian Borrower (a “Control
Event”) or (2) circumstances exist that might reasonably give rise
to the occurrence of a Control Event, the Italian Borrower shall, to the extent
it can do so without breaching any applicable law or regulation or contract and
subject always to Clause 24 (Confidentiality), promptly notify the Agent upon
becoming aware of that event.


 


7.3.2                   If within 20 days of receiving the notice referred to in
paragraph 7.3.1 the Majority Lenders:


 


(i)                                  determine, acting reasonably and in good faith, that the
New Shareholder(s) are of a reputation that gives the Majority Lenders reason
to believe that any amounts due under the Finance Documents will not be repaid
as and when they become due; and


 


23

















 


(ii)                               deliver a written notice through the Agent to the Italian
Borrower to this effect,


 


then
upon the later of (i) the receipt of the notice pursuant to paragraph 7.3.2
above and (ii) the occurrence of the Control Event the Agent shall, by not less
than 45 days’ notice to the Borrowers (by means of a notice in addition to
the one specified in b(ii) above), cancel the Total Commitments and declare all
outstanding Loans, together with accrued interest, and all other amounts
accrued under the Finance Documents immediately due and payable, whereupon the
Total Commitments will be cancelled and all outstanding amounts will become
immediately due and payable.


 


7.3.3                   For the purposes of this Clause 7.3 “control”
shall be construed in accordance with the first and second paragraphs of
Article 2359 of the Italian Civil Code and Article 93 of Legislative Decree No.
58 of 24 February 1998 (as subsequently amended or supplemented).


 


7.4                            Acquisition
Documents


 


If
any party to the Acquisition Documents rescinds or repudiates any of those
agreements or instruments in whole or in part and following such rescission or
repudiation, the consideration paid by a member of the Group for Target is
repaid to such Group member, if the Majority Lenders, acting reasonably and in
good faith, confirm to the Italian Borrower in writing through the Agent that
such rescission or repudiation is likely to have a material adverse effect on
the interests of the Lenders under the Finance Documents, then the Agent shall,
by not less than 30 days’ notice to the Borrowers, require the repayment of the
Loans, together with accrued interest on the Facilities on the last day of the
Interest Period falling not less than 30 days after the receipt of such notice.


 


7.5                            Voluntary
cancellation


 


Each
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 U.S.$10,000,000 ) of the Available
Facility. Any cancellation under this Clause 7.5 shall reduce the Commitments
of the Facility D Lenders or Facility E Lenders, as the case may be, rateably
under that Facility.


 


7.6                            Automatic
Cancellation


 


The
whole of the Available Facilities shall automatically be cancelled upon receipt
by the Agent of written confirmation (by way of a written notice to the Agent
from a Borrower) by a Borrower that it does not intend to proceed with the
Acquisition.


 


7.7                            Voluntary
prepayment of Facility D Loans


 


7.7.1                   The US 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 7.10.2 prepay, the whole or any part of a Facility
D Loan (but, if in part, being a minimum amount of US$10,000,000).


 


7.7.2                   Any prepayment under this Clause 7.7 shall satisfy the
obligations under Clauses 6.1 (Repayment of Facility D Loans)) pro-rata
across all Facility D repayment instalments set out at Clause 6.1.


 


24

















 


7.8                            Voluntary
Prepayment of Facility E Loans


 


The Italian 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 7.10.2 prepay, the whole or any
part of any Facility E Loan (but if in part, being on a minimum amount of
U.S.$10,000,000).


 


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


 


7.9.1                   If:


 


(i)                                  any sum payable to any Lender by an Obligor is required
to be increased under paragraph 12.2.3; or


 


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


 


(iii)                            any Lender notifies the Agent of its Additional Cost Rate
under paragraph 3 of Schedule 4 (Mandatory Cost formulae),


 


the
Italian Borrower may, whilst (in the case of paragraphs (i) and (ii) above) the
circumstance giving rise to the requirement or indemnification continues or (in
the case of paragraph (iii) above) the Additional Cost Rate is greater than
zero, give the Agent notice of cancellation of the Commitment of that Lender
and its intention to procure the repayment of that Lender’s participation in
the Loans.


 


7.9.2                   On receipt of a notice referred to in paragraph 7.9.1
above, the Commitment of that Lender shall immediately be reduced to zero.


 


7.9.3                   On the last day of each Interest Period which ends after
the Italian Borrower has given notice under paragraph 7.9.1 above (or, if
earlier, the date specified by the Italian Borrower in that notice), each
Borrower in relation to which a Loan is outstanding shall repay that Lender’s
participation in that Loan.


 


7.10                     Restrictions


 


7.10.1            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.


 


7.10.2            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.


 


7.10.3            No Borrower may reborrow any part of a Facility which is
prepaid.


 


7.10.4            The Borrowers 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.


 


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


 


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


 


25

















 


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                   LIBOR; and


 


8.1.3                   Mandatory Cost, if any.


 


8.2                            Payment
of interest


 


The
relevant Borrower to which a Loan has been made shall pay accrued interest on
that 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.


 


8.4                            Notification
of rates of interest


 


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


 


26

















 


9                                      Interest
Periods


 


9.1                            Selection
of Interest Periods


 


9.1.1                   A 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 for a Facility E Loan and for a
Facility D Loan is irrevocable and must be delivered to the Agent by the
Italian Borrower and the US Borrower respectively, not later than the Specified
Time.


 


9.1.3                   If a Borrower fails to deliver a Selection Notice to the
Agent in accordance with paragraph 9.1.2 above, the relevant Interest Period
will, subject to Clause 9.2 (Changes to Interest Periods), be three Months.


 


9.1.4                   Subject to this Clause 9, a Borrower may select an
Interest Period of one, two, three or six Months or any other period agreed
between a 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 its 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                            Changes
to Interest Periods


 


9.2.1                   Prior to determining the interest rate for a Loan, the
Agent may shorten an Interest Period for any Loan to ensure there are
sufficient Loans which have an Interest Period ending on a Repayment Date for a
Borrower to make the Repayment Instalment due on that date.


 


9.2.2                   If the Agent makes a change to an Interest Period
referred to in paragraph 9.2.1 above, it shall promptly notify the relevant
Borrower and the Lenders.


 


9.3                            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).


 


9.4                            Consolidation
and division of Facility D Loans and of Facility E Loans


 


9.4.1                   Subject to paragraph 9.4.2 below, if two or more Interest
Periods:


 


(i)                                  relate to Facility D Loans; and


 


(ii)                               end on the same date,


 


those
Facility D Loans will, unless the US Borrower specifies to the contrary in the
Selection Notice for the next Interest Period, be consolidated into, and
treated as, a single Facility D Loan on the last day of the Interest Period.


 


9.4.2                   Subject to Clause 4.3 (Maximum number of Loans) and
Clause 5.3 (Currency and amount), if the US Borrower requests in a Selection Notice
that a Facility D Loan be divided into two or more Facility D Loans, that
Facility D Loan will, on the last day of its Interest Period, be so divided in
the amounts specified in that Selection


 


27

















 


Notice, being an aggregate amount equal to
the amount of the Facility D Loan immediately before its division.


 


9.4.3                   Subject to paragraph 9.4.4 below, if two Interest
Periods:


 


(i)                                  relate to Facility E Loans; and


 


(ii)                               end on the same date,


 


those
Facility E  Loans, will, unless the Italian Borrower specifies to the
contrary in the Selection Notice for the next Interest Period, be consolidated
into, and treated as, a single Facility E Loan on the last day of the Interest
Period.


 


9.4.4                   Subject to Clause 4.3 (Maximum number of Loans) and
Clause 5.3 (Currency and amount), if the Italian Borrower requests in a
Selection Notice that a Facility E Loan be divided into two Facility E Loans,
that Facility E Loan will, on the last day of its Interest Period, be so divided
in the amounts specified in that Selection Notice, being an aggregate amount
equal to the amount of the Facility E Loan immediately before its division.


 


10                               Changes
to the Calculation of Interest


 


10.1                     Absence
of quotations


 


Subject
to Clause 10.2 (Market disruption) LIBOR 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 LIBOR shall be determined
on the basis of the quotations of the remaining Reference Banks.


 


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 LIBOR 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 a
Lender or Lenders (whose participations in a Loan exceed 60 per cent of that
Loan) that the


 


28

















 


cost to it of obtaining matching
deposits in the Relevant Interbank Market would be in excess of LIBOR.


 


10.3                     Alternative
basis of interest or funding


 


10.3.1            If a Market Disruption Event occurs and the Agent or the
Italian Borrower so requires, the Agent and the Italian 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 Italian
Borrower, be binding on all Parties.


 


10.4                     Break
Costs


 


10.4.1            Subject to Clause 7.10.2, 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.


 


11                               Fees


 


11.1                     Commitment
fee


 


11.1.1            The Borrowers shall pay to the Agent (for the account of
each Lender) an aggregate fee  computed
at the rate of 0.10 per cent per annum on that Lender’s Available Commitment
under each Facility during the Availability Period  from the date falling 30 days after the
Signing Date up to and including the first Utilisation Date of the Facility.


 


11.1.2            The accrued commitment fee is payable in arrears on the
last day of each successive period of three Months which ends during the
relevant Availability Period, on the first Utilisation Date and, if cancelled
in full, on the cancelled amount of the relevant Lender’s Commitment at the
time the cancellation is effective.


 


11.2                     Facility
fee


 


The
Borrowers shall pay to the Underwriters and Bookrunners a facility fee in the
amount and at the times agreed in the Facility Fee Letter.


 


11.3                     Agency
fee


 


The
Borrowers 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.


 


29

















 


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 paragraphs
(a)(iii) and (b)(ii) 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 Italian 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 Italian 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 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 in respect of tax
imposed by the Republic of Italy or, as the case may be, United States of
America from any payment under this Agreement, if on the date on which the
payment falls due:


 


30

















 


(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 Lender did not comply 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 relevant 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 Borrowers 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 Italian 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 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.


 


31

















 


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 Borrowers.


 


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
Borrowers 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 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


 


32

















 


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 Borrowers 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 Borrowers.


 


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.


 


13.3                     Exceptions
to increased costs


 


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


 


33

















 


(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 Facilities.


 


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
Borrowers 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:


 


14.2.1            the occurrence of any Event of Default;


 


34

















 


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
Borrowers 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
Italian 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 Borrowers 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 Borrowers shall,
within five Business Days of demand, reimburse the Agent for the amount of all
costs and expenses


 


35

















 


(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 Borrowers 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.


 


36
















 


Section 7

Guarantee


 


17                               Guarantee
and Indemnity


 


17.1                     Guarantee
and indemnity


 


Each
Guarantor irrevocably and unconditionally jointly and severally:


 


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


 


17.1.2            undertakes with each Finance Party that whenever a
Borrower does not pay any amount when due under or in connection with any
Finance Document, that Guarantor 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


 


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;


 


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;


 


37

















 


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


 


17.4.7            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 relevant 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 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;


 


38

















 


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 Group S.p.A. as Guarantor
shall at no time require Luxottica Group S.p.A. to pay any amount that exceeds
Euro 2,344,396,000 (or its equivalent) on the date of any payment hereunder;
and


 


(ii)          the obligations of Luxottica S.r.l. shall at no time
require Luxottica S.r.l. to pay any amount which exceeds an amount
corresponding to its Net Worth (as defined below), as determined from time to
time on the basis of its most recent audited annual financial statements,
provided, however, that such amount shall not exceed the higher of (a) Euro
1,217,778,487 (or its equivalent on the date hereof) and (b) the Net Worth of
Luxottica S.r.l. as at the date hereof.;


 


(iii)         Luxottica U.S. Holdings Corp.’s and any other Additional
Guarantor incorporated in the US’s liability as Guarantor (in such capacity a “US Guarantor”) hereunder shall be limited to an amount not
to exceed 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 and directly or 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; or


 


(b)        the amount that could be claimed by the Agents and
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; and


 


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 Borrowers (“Guaranteed
Obligations”) that, taking into account all other Guarantor Payments
then


 


39

















 


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 Facility 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), the Italian Borrower may request that any of its
Subsidiaries become an Additional Guarantor. That Subsidiary shall become an
Additional Guarantor if:


 


(i)                                  the Italian 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 Borrowers and the Lenders
promptly upon being satisfied that it has received (in form and substance
satisfactory to it but acting


 


40

















 


reasonably 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.


 


41

















 


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.


 


42

















 


18.6                     Governing
law and enforcement


 


18.6.1            The choice of English 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 England 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 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 €10.33 per
foolscap sheet), in respect of any Finance Document the documentary taxes
payable in respect of which have not been franked by the payment of imposta sostitutiva in relation to this Agreement; and


 


43

















 


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 audited Consolidated Financial Statements
(in the case of the Italian Borrower) and audited consolidated financial
statements (in the case of the US Borrower) delivered to the Agent were
prepared in accordance with GAAP consistently applied.


 


18.11.2     The most recent audited Consolidated Financial Statements
(in the case of the Italian Borrower) and audited consolidated financial
statements (in the case of the US Borrower) delivered to the Agent in each case
fairly represent the consolidated financial condition and operations of the
relevant company or the Group in the case of the Italian Borrower during the
relevant 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 Borrowers’ 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.


 


44

















 


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
asserted 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 


 


45

















 


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.


 


18.19              Anti-Terrorism
Laws


 


18.19.1     To the best of the Obligors’ knowledge, no Obligor nor
any Affiliate thereof: (i) is, or is controlled by, a Restricted Party; (ii)
has received funds or other property from a Restricted Party; or (iii) 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,
controlled administration (amministrazione
controllata), extraordinary administration (amministrazione
straordinaria), bankruptcy (fallimento) or
composition with creditors (concordato preventivo)
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.


 


46

















 


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 Italian 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 (during the
Pro-Forma Relevant Period), the Consolidated Pro-Forma Financial Statements;
and


 


(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


 


47

















 


Statements and (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 30 September 2007.


 


19.1.2    The US Borrower shall supply or procure the supply to the
Agent (in sufficient copies for all the Lenders) as soon as practicable after
they become available, but in any event within 150 days of each of its
financial years its audited consolidated financial statements for that
financial year.


 


19.1.3    If so requested by the Agent, Luxottica S.r.l. shall
supply to the Agent in sufficient copies for all the Lenders, as soon as they
become available, but in any event within 180 days of each of its financial
years its financial statements which have been prepared in accordance with GAAP
for that financial year.


 


19.2       Compliance
Certificate


 


19.2.1    The Italian 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.


 


19.2.2    Each Compliance Certificate shall be signed by any two
directors of the Italian Borrower and/or the US Borrower (as the case may be)
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 Italian Borrower’s auditors, it being agreed that should the Italian
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 Italian Borrower shall nevertheless use 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 Italian 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


 


48

















 


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 Italian Borrower notifies the Agent of a change in
accordance with paragraph (i) above then the Italian 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.


 


19.4                     Information:
miscellaneous


 


The
Borrowers shall supply to the Agent (in sufficient copies for all the Lenders,
if the Agent so requests):


 


19.4.1            as soon as practicable, following receipt of shareholders’
approvals and regulatory approvals in each case in respect of the Acquisition,
written confirmation of such approvals;


 


19.4.2            in the event that the Borrowers confirm that they have
received the authorisations set out in paragraph 19.4.1 above updates of the
financial projections already prepared and supplied to the Lenders in
contemplation of the Acquisition; and


 


19.4.3            all documents dispatched by the Borrowers 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; and


 


19.4.4            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


 


49

















 


19.4.5            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 Borrowers
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 Borrowers may satisfy their 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 Italian
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 Borrowers 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
Borrowers accordingly and the Borrowers 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 Borrowers 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;


 


(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


 


50

















 


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 Borrowers shall comply with
any such request within 10 Business Days.


 


19.7                     “Know
your customer” checks


 


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.


 


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);


 


51

















 


“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
Italian 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.


 


20.3                     Financial
testing


 


The
financial covenants set out in Clause 20.2 (Financial condition) shall be
tested 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


 


52

















 


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 Italian 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 Italian 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,


 


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;


 


(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


 


53

















 


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 Borrowers 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.


 


21.5                     Intellectual
Property


 


21.5.1    The Borrowers shall, and the Italian 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 Borrowers shall not, and the Italian 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 Italian 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:


 


54

















 


(i)           made in the ordinary course of the business 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)         following 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 any of the Facilities 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);


 


(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 7.3 (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.


 


21.7                     Merger


 


No
Obligor nor any Material Subsidiaries shall (and the Italian 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:


 


55

















 


(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
(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).


 


21.8                     Change
of business


 


The
Italian Borrower shall procure that no substantial change is made to the
general nature of the business of the Borrowers or the Group from that carried
on at the date of this Agreement, where such change is reasonably likely to
have a Material Adverse Effect.


 


21.9                     Insurance


 


Each
Obligor shall (and the Italian 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 Italian 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 Borrowers 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


 


56
















 


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;


 


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 Italian 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 


 


57

















 


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.


 


21.14              Distributions


 


Whilst an Event of Default is continuing, the
Borrowers 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


 


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


 


21.16              Refinancing
of Existing Financial Indebtedness


 


The
Italian 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.


 


58

















 


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 (A) the Target occurring as a
result of the Acquisition or (B) any other entity 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 of 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


 


59

















 


negotiations with one or more of its
creditors with a view to rescheduling any of its 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 2448
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, concordato preventivo and
amministrazione controllata 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:


 


60

















 


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


 


(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 Italian Borrower) is not or ceases to be a Subsidiary
of the Italian Borrower save for any merger or reorganisation entered into in
accordance with the terms of this Agreement.


 


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


 


61

















 


each
case are reasonably likely to be adversely determined, and if so determined is
reasonably likely to have a Material Adverse Effect.


 


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              Acceleration


 


On
and at any time after the occurrence of an Event of Default which is continuing
the Agent may, and shall if so directed by the Majority Lenders, by notice to
the Borrowers:


 


22.16.1     cancel the Total Commitments whereupon they shall
immediately be cancelled;


 


22.16.2     declare that all or part of the Loans, together with
accrued interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they shall become
immediately due and payable; and/or


 


22.16.3     declare that all or part of the Loans be payable on
demand, whereupon they shall immediately become payable on demand by the Agent
on the instructions of the Majority Lenders.


 


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.


 


62

















 


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 and/or Underwriter or Bookrunner (the “Existing Lender”) may:


 


23.1.1            assign any of its rights; or


 


23.1.2            transfer by novation any of its rights and obligations,


 


to
a Qualifying Lender (the “New Lender”).


 


23.2                     Conditions
of assignment or transfer


 


23.2.1            The written consent of the Italian Borrower together with
a notice to Luxottica U.S. Holdings Corp. 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 provided that
no such consent is required following the occurrence of any Default which is
continuing.


 


23.2.2            The consent of the Italian Borrower to an assignment or
transfer must not be unreasonably withheld or delayed. The Italian 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 Italian Borrower (through the Agent) within that time.


 


23.2.3            An assignment 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 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


 


(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


 


63

















 


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            For the avoidance of doubt, there is no requirement that
any transfer or assignment by a Lender under this Clause 23 be pro-rata as
between the Facilities.


 


23.3                     Assignment
or transfer fee


 


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 US $ 3,000 with respect
to an 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.


 


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.


 


64

















 


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
and the Agent makes a corresponding entry in the Register pursuant to Clause
23.8.. 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 and make such corresponding entry in the Register.


 


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 and make
a corresponding entry in the Register 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 novation 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;


 


(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 Borrowers


 


The
Agent shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send to the Borrowers 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;


 


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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.


 


23.8                     The
Register


 


For
U.S. federal income tax purposes only, the Agent, acting solely for this
purpose as an agent of the Obligors, shall maintain at one of its offices a
copy of each Transfer Certificate delivered to it and a register (the “Register”)
for the recordation of the names and addresses of each Lender and the
Commitments of and obligations owing to each Lender. Without limitation of any
other provision of this Clause 29 (Changes to the Lenders), no transfer shall
be effective until recorded in the Register. The entries in the Register shall
be conclusive absent manifest error and each Obligor, the Agent and each Lender
may treat each person whose name is recorded in the Register as a Lender
notwithstanding any notice to the contrary. The Register shall be available for
inspection by each Obligor at any reasonable time and from time to time upon
reasonable prior notice.


 


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 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;


 


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24.1.3            to any other third party where the Italian 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            pursuant to subpoena or other legal process, or in
connection with any action, suit or proceeding relating to any of the Finance
Documents; and


 


24.1.6            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 Borrowers.


 


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 the terms
of this Agreement.


 


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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 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:


 


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(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.


 


26.6       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.


 


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.


 


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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.


 


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 and any
officer, employee or agent of the Agent may rely on this Clause subject to
Clause 1.4 (Third Party Rights) and the provisions of the Contracts (Rights of
Third Parties) Act 1999.


 


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 Italian
Borrower.


 


26.10.2     Alternatively the Agent may resign by giving notice to
the other Finance Parties and the Italian Borrower, in which case the Majority
Lenders may appoint a successor Agent. Such successor Agent must be acceptable
to the Italian 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 Italian Borrower)
may appoint a successor Agent subject to such successor Agent being acceptable
to the Italian 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 Italian 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 Italian 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


 


75

















 


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 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 to 29.8.5 below, the Base
Currency is the currency of account and payment for any sum due from an Obligor
under any Finance Document.


 


29.8.2            A repayment of a Loan or Unpaid Sum or a part of a Loan
or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.


 


29.8.3            Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was denominated when
that interest accrued.


 


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


 


29.8.5            Any amount expressed to be payable in a currency other
than the Base Currency shall be paid in that other currency.


 


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 Italian
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 Italian 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 Borrowers, that identified with their
respective names 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


 


77

















 


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.


 


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 Italian Borrower)
irrevocably appoints the Italian 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
Italian 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


 


78

















 


(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 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


 


79

















 


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.


 


35                               Amendments
and Waivers


 


35.1                     Required
consents


 


35.1.1            Subject to Clause 35.1.3 (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.


 


35.1.3            Any Lender who:


 


(i)                                  receives any request by any Borrower or Guarantor for any
consent under the Finance Documents (each a “Request”);
and


 


(ii)                               does not vote on such Request within 15 Business Days (or
such other period as the Borrowers and the Agent may agree),


 


will be excluded in determining whether that
Request is granted provided that this
paragraph 35.1.3 shall not apply to any Request which requires the consent of
all the Lenders.


 


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 Borrowers 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 or a Non-Consenting Lender (each as defined below)
then the Borrowers may:


 


80

















 


(i)                                  give the Agent at least 10 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 Borrowers in that
notice), the Borrowers shall prepay all (but not part) of that Lender’s
participation in the Loan, and following the final payment the Commitment of
that Lender shall immediately be reduced to zero; or


 


(ii)                               on not less than 10 Business Days’ prior notice to the
Agent and that Lender, replace that Lender by causing it to (and 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 a new Lender (the “Replacement Lender”) for a purchase price in cash 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 Borrowers shall have no right to replace the Agent;


 


(ii)                               neither the Agent nor any Lender shall have any
obligation to the Borrowers 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 (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 35.1.3 (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 Clause 7.1 (Illegality) 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 Italian Borrower or the Agent (at the request of the
Italian Borrower) has requested the Lenders to consent to a waiver or an


 


81

















 


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 35.1.3 (Replacement of Lender) or in
respect of the equivalent provisions in paragraph 6.3.4 of Clause 6.3
(Extension of Termination Date) or Clause 7.1 (Illegality) of this Agreement,
the transfer concerned will be deemed to have been completed 2 Business Days
after that Transfer Certificate is executed and delivered to that Lender by the
transferee concerned and the relevant amount is paid to the Agent.


 


36                               Counterparts


 


Each
Finance Document may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single copy
of the Finance Document.


 


37                               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.


 


82

















 


Section 12

Governing Law and Enforcement


 


38                               Governing
Law


 


This
Agreement is governed by English law.


 


39                               Enforcement


 


39.1                     Jurisdiction


 


39.1.1            The courts of England 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”).


 


39.1.2            The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and accordingly no Party
will argue to the contrary.


 


39.1.3            This Clause 39.1 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.


 


39.2                     Service
of process


 


Without
prejudice to any other mode of service allowed under any relevant law, each
Obligor:


 


39.2.1            irrevocably appoints Luxottica UK Ltd. as its agent for service
of process in relation to any proceedings before the English courts in
connection with any Finance Document; and


 


39.2.2            agrees that failure by a process agent to notify the
relevant Obligor of the process will not invalidate the proceedings concerned.


 


40                               WAIVER
OF JURY TRIAL


 


EACH OF THE PARTIES TO THIS AGREEMENT AGREES
TO WAIVE IRREVOCABLY ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE DOCUMENTS REFERRED TO IN THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN THIS AGREEMENT. This waiver is
intended to apply to all Disputes. Each party acknowledges that (a) this waiver
is a material inducement to enter into this Agreement, (b) it has already
relied on this waiver in entering into this Agreement and (c) it will continue
to rely on this waiver in future dealings. Each party represents that it has
reviewed this waiver with its legal advisers and that it knowingly and
voluntarily waives its jury trial rights after consultation with its legal
advisers. In the event of litigation, this Agreement may be filed as a written
consent to a trial by the court.


 


83

















 


41                               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.


 


This
Agreement has been
entered into on the date stated at the beginning of this Agreement.


 


84

















 


 


 


Schedule 1

The Parties


 


Part 1

The Obligors


 




	
  Name
  of Borrower

  	
   

  	
  Registration number (or equivalent,
  if any)

  
	
  Luxottica
  Group S.p.A.

  	
   

  	
  00891030272

  
	
  Luxottica
  U.S. Holdings Corp.

  	
   

  	
  Not
  applicable

  






 




	
  Name
  of Guarantor

  	
   

  	
  Registration number (or equivalent,
  if any)

  
	
  Luxottica
  Group S.p.A.

  	
   

  	
  00891030272

  
	
  Luxottica
  S.r.l.

  	
   

  	
  00064820251

  
	
  Luxottica
  U.S. Holdings Corp.

  	
   

  	
  Not
  applicable

  






 


85

















 


Part 2

The Facility D Lenders


 


	
  Name of Facility D Lender

  	
   

  	
  Facility D Commitment

  (in U.S.$ )

  	
   

  
	
  Citibank N.A., New York

  	
   

  	
  187,500,000.01

  	
   

  
	
  Intesa
  Sanpaolo S.p.A.

  	
   

  	
  187,500,000.00

  	
   

  
	
  Bayerische Hypo- und Vereinsbank AG, New
  York Branch (part of UniCredit Markets and Investment Banking)

  	
   

  	
  187,500,000.00

  	
   

  
	
  The Royal Bank of Scotland plc, Milan
  Branch

  	
   

  	
  187,500,000.00

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  83,333,333.33

  	
   

  
	
  BNP Paribas SA, Milan Branch

  	
   

  	
  83,333,333.33

  	
   

  
	
  Calyon S.A.

  	
   

  	
  83,333,333.33

  	
   

  
	
  Total

  	
   

  	
  U.S.$

  	
  1,000,000,000

  	
   

  
					



 


86

















 


Part
3

The Facility E Lenders


 


	
  Name of Facility E Lender

  	
   

  	
  Facility E Commitment

  (in U.S.$ )

  	
   

  
	
  Citibank N.A., Milan Branch

  	
   

  	
  93, 749,999.99

  	
   

  
	
  Intesa
  Sanpaolo S.p.A.

  	
   

  	
  93,750,000.00

  	
   

  
	
  Bayerische Hypo- und Vereinsbank AG, Milan
  Branch (part of UniCredit Markets and Investment Banking)

  	
   

  	
  93,750,000.00

  	
   

  
	
  The Royal Bank of Scotland plc, Milan
  Branch

  	
   

  	
  93,750,000.00

  	
   

  
	
  Bank of America, N.A., Milan Branch

  	
   

  	
  41,666,666.67

  	
   

  
	
  BNP Paribas SA, Milan Branch

  	
   

  	
  41,666,666.67

  	
   

  
	
  Calyon S.A.

  	
   

  	
  41,666,666.67

  	
   

  
	
  Total

  	
   

  	
  U.S.$

  	
  500,000,000

  	
   

  
					



 


87

















 


 


 


Schedule 2

Conditions Precedent to initial Utilisation


 


1             Obligors


 


(a)


 


(i)           A copy of the constitutional documents of the US
Borrower.


 


(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 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 the
US Borrower, issued as of a recent date by the Secretary of State or other
appropriate official of the US Borrower’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 the
Finance Documents to which it is a party on its behalf; and


 


(iii)         authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents and notices (including, if relevant, any
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)           A specimen of the signature of each person authorised by
the resolution referred to in paragraph (iii) above.


 


(d)          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.


 


(e)           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 Studio Legale Associato, in
associazione con Clifford Chance as to matters of English law (in the form
circulated to the Agent prior to the date of this Agreement).


 


 


88

















 


(b)                               A legal opinion of Studio Legale Associato, in
associazione con Clifford Chance as to matters of Italian law (in the form
circulated to the Agent prior to the date of this Agreement).


 


(c)                                A legal opinion of Linklaters Studio Legale Associato
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.


 


(d)                               A legal opinion of Linklaters LLP addressed to the
Lenders as at the date of this Agreement as legal advisers to the Borrowers as
to matters of US Law.


 


3                                      Target Documents


 


(a)                                Evidence that immediately following the first Utilisation
and application of the proceeds by the Paying Agent (as defined in the merger
agreement referred to in paragraph (f) below), the Acquisition will be
completed.


 


(b)                               Evidence that all governmental and regulatory consents
and other clearances (including, but not limited to, tax clearances) and all
third party consents and approvals required under the Acquisition Documents
have been obtained.


 


(c)                                A funds flow statement in a form agreed to by the Agent
detailing the proposed movement of funds to be applied towards the Total
Consideration.


 


(d)                               A certificate of the US Borrower (signed by an Authorised
Signatory) confirming that entering into the Acquisition Documents (and the
performance of the relevant transactions thereunder) would not conflict with:
(i) any law or regulation applicable to it or Target, (ii) its or Target’s or
any of its Subsidiaries constitutional documents, and (iii) any agreement or
instrument binding upon Target or any of its or Target’s Subsidiaries or any of
its Subsidiaries’ assets except any such conflict that would not be reasonably
expected to have a Material Adverse Effect.


 


(e)                                A structure chart in a form agreed by the Agent showing
the corporate structure of the Group (including Target and its Subsidiaries)
immediately following the Acquisition.


 


(f)                                  A copy of the merger agreement dated as of 20 June 2007
between, inter alia, the Italian Borrower and Target.


 


(g)                               A copy of the latest available audited consolidated
financial statements of Target and the latest available quarterly financial
statements in each case of Target.


 


4                                      Other documents and evidence


 


(a)           Evidence that any process agent referred to in Clause
39.2 (Service of process) has accepted its appointment.


 


(b)          A copy of any other Authorisation or other document,
opinion or assurance which the Agent considers to be necessary or desirable (if
it has notified the Italian Borrower accordingly) in connection with the entry
into and performance of the transactions contemplated by any Finance Document
or for the validity and enforceability of any Finance Document.


 


(c)           The Original Financial Statements.


 


(d)          Acceptance by the Italian Borrower of the Documento di Sintesi.


 


 


89

















 


 


(e)           Evidence that the fees, costs and expenses then due from
the Borrowers on or prior to the first Utilisation Date pursuant to Clause 11
(Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the
first Utilisation Date.


 


 


90

















 


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.


 


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.


 


 


93

















 


 


9                                      The Agent may from time to time, after consultation with
the Italian 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.


 


 


94
















 


 


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-3

  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.

  
	
   

  	
   

  	
   

  
	
  LIBOR
  is fixed

  	
   

  	
  Quotation
  Day as of

  11.00 a.m.

  



 






“U”
= date of utilisation


 


“U
- X” = X Business Days prior to date of utilisation


 


 


103

















 


 


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 Italian 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.


 


 


107

















 


 


11                               If the proposed Additional Guarantor is incorporated in a
jurisdiction other than England and Wales, evidence that the process agent
specified in Clause 39.2 (Service of process), if not an Obligor, has accepted
its appointment in relation to the proposed Additional Guarantor.


 


 


108

















 


 


Signatures


 


The
Original Borrowers


 


LUXOTTICA
GROUP S.p.A.


 


	
  /s/
  Enrico Cavatorta

  	
   

  
	
  By: Enrico Cavatorta

  
	
   

  	
   

  
	
  Address:

  	
  Via
  Cantu, 2, 20123, Milan, Italy

  
	
  Fax:

  	
  +39 02
  86994093/+390286334094

  
	
  Attention:

  	
  Enrico
  Cavatorta/Marco Bigatti

  
			



 


 


LUXOTTICA
U.S. HOLDINGS CORP.


 


	
  /s/
  Enrico Cavatorta

  	
   

  
	
  By:
  Enrico Cavatorta

  
	
   

  	
   

  
	
  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

  
			



 


 


The Original
Guarantors


 


LUXOTTICA
GROUP S.p.A.


 


	
  /s/
  Enrico Cavatorta

  	
   

  
	
  By:
  Enrico Cavatorta

  
	
   

  	
   

  
	
  Address:

  	
  Via
  Cantu, 2, 20123, Milan, Italy

  
	
  Fax:

  	
  +39 02
  86994093/+390286334094

  
	
  Attention:

  	
  Enrico
  Cavatorta/Marco Bigatti

  
			



 


 


 


110

















 


 


LUXOTTICA
U.S. HOLDINGS CORP.


 


	
  /s/
  Enrico Cavatorta

  	
   

  
	
  By:
  Enrico Cavatorta

  
	
   

  	
   

  
	
  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/
  Enrico Cavatorta

  	
   

  
	
  By:
  Enrico Cavatorta

  
	
   

  	
   

  
	
  Address:

  	
  Via
  Cantu, 2, 20123, Milan, Italy

  
	
  Fax:

  	
  +39
  02 86994093/+390286334094

  
	
  Attention:

  	
  Enrico
  Cavatorta/Marco Bigatti

  
			



 


 


The Agent


 


BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH (PART OF UNICREDIT

MARKETS AND INVESTMENT BANKING)


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  150
  East 42nd Street , New York, NY 10017

  
	
  Fax:

  	
  +1
  (212) 6725529

  
	
  Attention:

  	
  Mr. Nicola Longo-Dente

  
			



 


 


 


111

















 


 


The
Underwriters


 


CITIBANK
N.A., New York


 


	
  /s/
  Andrea Grandi

  	
   

  
	
  By:
  ANDREA GRANDI

  
	
   

  	
   

  
	
  Address:

  	
  2
  Penns Way, Newcastle, Delaware, 19720 

  
	
  Fax:

  	
  +1-212-994-0847/
  +1-212-994-0847

  
	
  Attention:

  	
  Oswin
  Joseph and Lauren Owen (both to be contacted)

  
			



 


 


CITIBANK
N.A., Milan Branch


 


	
  /s/
  Andrea Grandi

  	
   

  
	
  By:
  ANDREA GRANDI

  
	
   

  	
   

  
	
  Address:

  	
  Foro
  Buonaparte 16-20121 Milan, Italy

  
	
  Fax:

  	
  +39-02-5523-0776/
  +39-02-8647-4525

  
	
  Attention:

  	
  Robert
  Mantoan, Luigi Belloni and Elena Milani (all to be contacted)

  
			



 


 


INTESA SANPAOLO S.p.A.


 


	
  /s/
  Michele Ciapponi

  	
   

  
	
  By:
  MICHELE CIAPPONI

  
	
   

  	
   

  
	
  Address:

  	
  Piazza
  Scala, 6 Milan, Italy

  
	
  Fax:

  	
  +3902
  9794 3233/  +3902 87943297

  
	
  Attention:

  	
  Michele
  Ciapponi/ Raffaella Ciaccia

  
			



 


 


BAYERISCHE
HYPO- UND VEREINSBANK AG, MILAN BRANCH (PART OF UNICREDIT

MARKETS AND INVESTMENT BANKING)


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  Via
  T Grossi, 10, Milan, Italy

  
	
  Fax:

  	
  0039
  02 3024 6466

  
	
  Attention:

  	
  Federico Giordano \ Alessandro Roveda \ Anna
  Fusari

  
			



 


 


112

















 


 


BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK
BRANCH (PART OF UNICREDIT

MARKETS AND INVESTMENT BANKING)


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  150
  East 42nd Street , New York, NY 10017

  
	
  Fax:

  	
  +1
  (212) 6725529

  
	
  Attention:

  	
  Mr. Nicola Longo-Dente

  
			



 


 


THE ROYAL
BANK OF SCOTLAND PLC


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  135
  Bishopsgate, London, EC2M 3UR

  
	
  Fax:

  	
  +44 207 085 5143

  
	
  Attention:

  	
  Jaron
  Stallard

  
			



 


 


The
Mandated Lead Arrangers


 


BANC OF
AMERICA SECURITIES LIMITED


 


	
  /s/
  Javier Ignacio Laurenz

  	
   

  
	
  By:
  JAVIER IGNACIO LAURENZ

  
	
   

  	
   

  
	
  Address:

  	
  5
  Canada Square, London E14 5AQ

  
	
  Fax:

  	
  +44
  20 8313 2149

  
	
  Attention:

  	
  Loans
  Agency

  
			



 


 


 


113

















 


 


BNP
PARIBAS SA


 


	
  /s/ Alessandro
  Roveda

  	
   

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  



 


	
  Address:

  	
  Piazza
  San Fedele, 2 - 20121 — Milan, Italy

  
	
  Fax:

  	
  +390272476232/
  +39 02 7247 6426

  
	
  Attention:

  	
  Alessandra
  Profumo/ Paolo Maragno

  



 


 


CALYON
S.A.


 


	
  /s/ Giovanni
  Tardivo

  	
   

  	
   

  
	
  By: GIOVANNI
  TARDIVO

  



 


	
  Address:

  	
  Via
  Brera, 21, 20121 Milan, Italy

  
	
  Fax:

  	
  +39
  02 72303 205

  
	
  Attention:

  	
  Mrs
  Paola Chiariotti /Mr Giovanni Tardivo / Mr Alberto Bezzi

  



 


 


CITIGROUP
GLOBAL MARKETS LIMITED


 


	
  /s/ Andrea
  Grandi

  	
   

  	
   

  
	
  By: ANDREA
  GRANDI

  



 


	
  Address:

  	
  Citigroup
  Centre, 33 Canada Square, London, E14 5LB

  
	
  Fax:

  	
  +44
  (0) 207 986 8278

  
	
  Attention:

  	
  Kim
  McNamara, Global Loans, Fixed Income Capital Markets

  



 


 


INTESA SANPAOLO S.p.A.


 


	
  /s/ Michele
  Ciapponi

  	
   

  	
   

  
	
  By: MICHELE
  CIAPPONI

  



 


	
  Address:

  	
  Piazza
  Scala, 6 Milan, Italy

  
	
  Fax:

  	
  +3902
  9794 3233

  
	
  Attention:

  	
  Michele
  Ciapponi 

  



 


 


 


114

















 


 


BAYERISCHE
HYPO- UND VEREINSBANK AG, MILAN BRANCH (PART OF UNICREDIT

MARKETS AND INVESTMENT BANKING)


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  Via
  T Grossi, 10, Milan, Italy

  
	
  Fax:

  	
  0039
  02 3024 6466

  
	
  Attention:

  	
  Federico Giordano \ Alessandro Roveda\ Anna Fusari

  
			



 


 


THE ROYAL
BANK OF SCOTLAND PLC


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  135
  Bishopsgate, London, EC2M 3UR

  
	
  Fax:

  	
  +44 207 085 5143

  
	
  Attention:

  	
  Jaron
  Stallard

  
			



 


The
Bookrunners


 


CITIGROUP
GLOBAL MARKETS LIMITED


 


	
  /s/
  Andrea Grandi

  	
   

  
	
  By:
  ANDREA GRANDI

  
	
   

  	
   

  
	
  Address:

  	
  Citigroup
  Centre, 33 Canada Square, London, E14 5LB

  
	
  Fax:

  	
  +44
  (0) 207 986 8278

  
	
  Attention:

  	
  Kim
  McNamara, Global Loans, Fixed Income Capital Markets

  
			



 


 


INTESA SANPAOLO S.p.A.


 


	
  /s/ Michele
  Ciapponi

  	
   

  	
   

  
	
  By: MICHELE
  CIAPPONI

  



 


	
  Address:

  	
  Piazza
  Scala, 6 Milan, Italy

  
	
  Fax:

  	
  +3902
  9794 3233

  
	
  Attention:

  	
  Michele
  Ciapponi 

  



 


 


115

















 


 


 


BAYERISCHE
HYPO- UND VEREINSBANK AG, MILAN BRANCH (PART OF UNICREDIT

MARKETS AND INVESTMENT BANKING)


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  Via
  T Grossi, 10, Milan, Italy

  
	
  Fax:

  	
  0039
  02 3024 6466

  
	
  Attention:

  	
  Federico Giordano \ Alessandro Roveda\  Anna Fusari

  
			



 


 


THE ROYAL
BANK OF SCOTLAND PLC


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  135
  Bishopsgate, London, EC2M 3UR

  
	
  Fax:

  	
  +44 207 085 5143

  
	
  Attention:

  	
  Jaron
  Stallard

  
			



 


 


The
Original Lenders


 


BANK OF
AMERICA, N.A.


 


	
  /s/ Stefano
  Donzelli

  	
   

  	
   

  
	
  By: STEFANO
  DONZELLI

  



 


	
  Address:

  	
  Building
  B, 2001 Clayton Road, Concord, CA 94520-2405

  
	
  Fax:

  	
  +1
  888 969 9246

  
	
  Attention:

  	
  Cristina Obcena / Pamela S. Greer-Tillman

  



 


 


 


116

















 


 


BANK OF
AMERICA, N.A., MILAN BRANCH


 


	
  /s/ Stefano
  Donzelli

  	
   

  	
   

  
	
  By: STEFANO
  DONZELLI

  



 


	
  Address:

  	
  Corso
  Matteotti 10, 5th Floor, Milan 20121, Italy

  
	
  Fax:

  	
  +39
  02 76069 211

  
	
  Attention:

  	
  Javier I. Laurenz/ Francesca Polidori

  



 


 


BNP
PARIBAS SA, MILAN BRANCH


 


	
  /s/ Alessandro
  Roveda

  	
   

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  



 


	
  Address:

  	
  Piazza
  San Fedele, 2 - 20121 - Milan, Italy

  
	
  Fax:

  	
  +390272476232/
  +39 02 7247 6426

  
	
  Attention:

  	
  Alessandra
  Profumo/ Paolo Maragno

  



 


 


CALYON
S.A.


 


	
  /s/ Giovanni
  Tardivo and Alberto Bezzi

  	
   

  	
   

  
	
  By: GIOVANNI
  TARDIVO and ALBERTO BEZZI

  



 


	
  Address:

  	
  Via
  Brera, 21, 20121 Milan, Italy

  
	
  Fax:

  	
  +39
  02 72303 205

  
	
  Attention:

  	
  Mrs
  Paola Chiariotti /Mr Giovanni Tardivo / Mr Alberto Bezzi

  



 


 


117

















 


 


 


CITIBANK
N.A., New York


 


	
  /s/
  Andrea Grandi

  	
   

  
	
  By:
  ANDREA GRANDI

  
	
   

  	
   

  
	
  Address:

  	
  2
  Penns Way, Newcastle, Delaware, 19720 

  
	
  Fax:

  	
  +1-212-994-0847/
  +1-212-994-0847

  
	
  Attention:

  	
  Oswin
  Joseph and Lauren Owen (both to be contacted)

  
			



 


 


CITIBANK
N.A., Milan Branch


 


	
  /s/
  Andrea Grandi

  	
   

  
	
  By:
  ANDREA GRANDI

  
	
   

  	
   

  
	
  Address:

  	
  Foro
  Buonaparte 16-20121 Milan, Italy

  
	
  Fax:

  	
  +39-02-5523-0776/
  +39-02-8647-4525

  
	
  Attention:

  	
  Robert
  Mantoan, Luigi Belloni and Elena Milani (all to be contacted)

  
			



 


 


INTESA SANPAOLO S.p.A.


 


	
  /s/
  Michele Ciapponi

  	
   

  
	
  By:
  MICHELE CIAPPONI

  
	
   

  	
   

  
	
  Address:

  	
  Piazza
  Scala, 6 Milan, Italy

  
	
  Fax:

  	
  +3902
  9794 3233

  
	
  Attention:

  	
  Michele
  Ciapponi 

  
			



 


 


BAYERISCHE
HYPO- UND VEREINSBANK AG, MILAN BRANCH (PART OF UNICREDIT

MARKETS AND INVESTMENT BANKING)


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  Via
  T Grossi, 10, Milan, Italy

  
	
  Fax:

  	
  0039
  02 3024 6466

  
	
  Attention:

  	
  Federico Giordano \ Alessandro Roveda\ Anna Fusari

  
			



 


 


118

















 


 


BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK
BRANCH (PART OF UNICREDIT

MARKETS AND INVESTMENT BANKING)


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  150
  East 42nd Street , New York, NY 10017

  
	
  Fax:

  	
  +1
  (212) 6725529

  
	
  Attention:

  	
  Mr. Nicola Longo-Dente

  
			



 


 


THE ROYAL
BANK OF SCOTLAND PLC, Milan Branch


 


	
  /s/
  Alessandro Roveda

  	
   

  
	
  By:
  ALESSANDRO ROVEDA

  
	
   

  	
   

  
	
  Address:

  	
  Via Turati 18, 20121 Milan, Italy

  
	
  Fax:

  	
  +39
  02 6597895

  
	
  Attention:

  	
  Marco Pessione, Licia Ciocca, Marzia Banfi and Sara
  Brugora

  
	
  Telephone:

  	
  +39
  02 6251204/ +39 02 6251215/ +39 02 625 1236/ +39 02 6251220

  
			



 


 


 


119