Exhibit 4.2


 


Conformed Copy


 


Dated
12 October  2007


 


 


LUXOTTICA U.S. HOLDINGS CORP.


as Borrower


 


and


 


Banc of America Securities Limited


 


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

Markets and Investment Banking)


 


 


as Arrangers


 


 


Bank of America, N.A.


 


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



Markets and Investment Banking)


 


 


as Underwriters and
Lenders


 


 


and


 


 


BANC OF AMERICA SECURITIES LIMITED


 


 


as
Agent


 


 


BRIDGE FACILITY
AGREEMENT


 


U.S.$
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 Facility

  	
  15

  
	
   

  	
   

  	
   

  
	
  3

  	
  Purpose

  	
  15

  
	
   

  	
   

  	
   

  
	
  4

  	
  Conditions of Utilisation

  	
  15

  
	
   

  	
   

  	
   

  
	
  5

  	
  Utilisation

  	
  17

  
	
   

  	
   

  	
   

  
	
  6

  	
  Repayment

  	
  18

  
	
   

  	
   

  	
   

  
	
  7

  	
  Prepayment and Cancellation

  	
  18

  
	
   

  	
   

  	
   

  
	
  8

  	
  Interest

  	
  22

  
	
   

  	
   

  	
   

  
	
  9

  	
  Interest Periods

  	
  23

  
	
   

  	
   

  	
   

  
	
  10

  	
  Changes to the Calculation of Interest

  	
  24

  
	
   

  	
   

  	
   

  
	
  11

  	
  Fees

  	
  25

  
	
   

  	
   

  	
   

  
	
  12

  	
  Tax Gross-up and Indemnities

  	
  26

  
	
   

  	
   

  	
   

  
	
  13

  	
  Increased Costs

  	
  29

  
	
   

  	
   

  	
   

  
	
  14

  	
  Other Indemnities

  	
  30

  
	
   

  	
   

  	
   

  
	
  15

  	
  Mitigation by the Lenders

  	
  31

  
	
   

  	
   

  	
   

  
	
  16

  	
  Costs and Expenses

  	
  31

  
	
   

  	
   

  	
   

  
	
  17

  	
  Guarantee and Indemnity

  	
  33

  
	
   

  	
   

  	
   

  
	
  18

  	
  Representations

  	
  38

  
	
   

  	
   

  	
   

  
	
  19

  	
  Information Undertakings

  	
  43

  
	
   

  	
   

  	
   

  
	
  20

  	
  Financial Covenants

  	
  47

  
	
   

  	
   

  	
   

  
	
  21

  	
  General Undertakings

  	
  48

  
	
   

  	
   

  	
   

  
	
  22

  	
  Events of Default

  	
  54

  
	
   

  	
   

  	
   

  
	
  23

  	
  Changes to the Lenders

  	
  59

  
	
   

  	
   

  	
   

  
	
  24

  	
  Confidentiality

  	
  62

  
	
   

  	
   

  	
   

  
	
  25

  	
  Changes to the Obligors

  	
  63

  
	
   

  	
   

  	
   

  
	
  26

  	
  Role of the Agent

  	
  64

  



 


i

















 


	
  27

  	
  Conduct of Business by the Finance Parties

  	
  68

  
	
   

  	
   

  	
   

  
	
  28

  	
  Sharing Among the Finance Parties

  	
  69

  
	
   

  	
   

  	
   

  
	
  29

  	
  Payment Mechanics

  	
  71

  
	
   

  	
   

  	
   

  
	
  30

  	
  Set-off

  	
  73

  
	
   

  	
   

  	
   

  
	
  31

  	
  Notices

  	
  73

  
	
   

  	
   

  	
   

  
	
  32

  	
  Calculations and Certificates

  	
  75

  
	
   

  	
   

  	
   

  
	
  33

  	
  Partial Invalidity

  	
  75

  
	
   

  	
   

  	
   

  
	
  34

  	
  Remedies and Waivers

  	
  75

  
	
   

  	
   

  	
   

  
	
  35

  	
  Amendments and Waivers

  	
  76

  
	
   

  	
   

  	
   

  
	
  36

  	
  Counterparts

  	
  78

  
	
   

  	
   

  	
   

  
	
  37

  	
  USA Patriot Act

  	
  78

  
	
   

  	
   

  	
   

  
	
  38

  	
  Governing Law

  	
  79

  
	
   

  	
   

  	
   

  
	
  39

  	
  Enforcement

  	
  79

  
	
   

  	
   

  	
   

  
	
  40

  	
  WAIVER OF JURY TRIAL

  	
  79

  
	
   

  	
   

  	
   

  
	
  41

  	
  US provisions

  	
  80

  
	
   

  	
   

  	
   

  
	
  Schedule 1 The
  Parties

  	
  81

  
	
   

  	
   

  
	
  Part 1 The
  Obligors

  	
  81

  
	
   

  	
   

  
	
  Part 2 The
  Lenders

  	
  82

  
	
   

  	
   

  
	
  Schedule 2
  Conditions Precedent to initial Utilisation

  	
  83

  
	
   

  	
   

  
	
  Schedule 3
  Requests

  	
  86

  
	
   

  	
   

  
	
  Part 1
  Utilisation Request

  	
  86

  
	
   

  	
   

  
	
  Part 2
  Selection Notice

  	
  87

  
	
   

  	
   

  
	
  Schedule 4
  Mandatory Cost Formulae

  	
  88

  
	
   

  	
   

  
	
  Schedule 5 Form
  of Transfer Certificate

  	
  90

  
	
   

  	
   

  
	
  Schedule 6 Form
  of Compliance Certificate

  	
  92

  
	
   

  	
   

  
	
  Schedule 7
  Existing Security

  	
  93

  
	
   

  	
   

  
	
  Schedule 8
  Confidentiality Undertaking

  	
  94

  
	
   

  	
   

  
	
  Schedule 9
  Timetables

  	
  98

  
	
   

  	
   

  
	
  Schedule 10
  Authorised Signatories

  	
  99

  



 


ii

















 


	
  Schedule 11
  Existing Indebtedness

  	
  100

  
	
   

  	
   

  
	
  Schedule 12
  Additional Guarantors

  	
  102

  
	
   

  	
   

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

  	
  102

  
	
   

  	
   

  
	
  Part 2 Form of
  Accession Letter

  	
  104

  



 


iii

















 


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


 


(1)                              LUXOTTICA GROUP S.p.A. (the “Company”);


 


(2)                              LUXOTTICA U.S. HOLDINGS CORP. as borrower (the “Borrower”);


 


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


 


(4)                              BANC OF AMERICA SECURITIES LIMITED
AND BAYERISCHE HYPO- UND VEREINSBANK AG, MILAN BRANCH (PART OF UNICREDIT
MARKETS AND INVESTMENT BANKING) as
exclusive bookrunners and mandated lead arrangers (whether acting individually
or together, the “Arrangers”);


 


(5)                              BANK OF AMERICA, N.A. AND BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH (PART OF UNICREDIT MARKETS AND
INVESTMENT BANKING) as
underwriters (whether acting individually or together, the “Underwriters”);


 


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


 


(7)                              BANC OF AMERICA SECURITIES
LIMITED, 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 Borrower (directly
or indirectly through the SPV) of the Target Group;


 


“Acquisition Documents” means all documents setting out the
agreement between the 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 Borrower and the Agent relating to the
payment by the Borrower of the agency fee to the Agent as set out in such
letter;


 


1

















 


“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.


 


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


 


“Authorised Signatory” means the persons listed in Schedule
10 (Authorised Signatories) and any other person authorised to execute any
document on behalf of the Borrower as is from time to time communicated by the
Company 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, a Lender’s Commitment under the
Facility minus:


 


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


 


2

















 


(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
the Facility on or before the proposed Utilisation Date;


 


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


 


“Bank Guarantee” means any guarantees or performance bonds
required to be issued by an Eligible Deposit Bank in the ordinary course of the
Borrower’s 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 the 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:


 


(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


 


3

















 


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


 


(b)                               in relation to any other Lender, the amount in US$ of any
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;


 


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


 


“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;


 


4

















 


“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
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 


 


5

















 


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 the bridge loan facility made available
under this Agreement as described in Clause 2 (The Facility);


 


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


 


“Facility
Office” means:


 


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


 


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


 


“Finance Party” means any of the Agent, the Arrangers, 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);


 


(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;


 


6

















 


(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 Borrower) 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 Company 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 the benefit of
all licences, applications, rights to use and monies deriving from any such
intellectual property now or hereafter belonging to any member of the Group;


 


7

















 


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


 


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


 


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


 


“Italian GAAP” means generally accepted accounting principles
in Italy;


 


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


 


“Lender” means a Lender listed in Part 2 of Schedule 1 (The
Parties);


 


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


 


“Majority Lenders” means:


 


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


 


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


 


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


 


“Margin” means 0.15 per cent. per annum;


 


“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;


 


8

















 


“Material Subsidiary” means, at any time, a Subsidiary of the
Company 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 Company
will be determined from its financial statements (consolidated if it has
subsidiaries) upon which the latest audited financial statements of the Group
have been based;


 


(b)                               if a Subsidiary of the Company 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 Company, 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 Company 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;


 


“Net Proceeds”
in relation to the US Private Placement or the other debt capital market
issuances, means the amount received in Cash or Cash Equivalent Investments (or
other instruments which upon receipt are readily convertible into Cash on
reasonable commercial terms) by a member of the Group in respect of the US
Private Placement or the other debt capital market issuances:


 


(a)                                after deducting Taxes (and amounts reasonably reserved in
respect of Taxes) payable by members of the Group in respect of that disposal
or claim;


 


(b)                               including amounts held in escrow (if any), but only when
released from escrow; and


 


9

















 


(c)                                after deducting proper costs and reasonable expenses
incurred by members of the Group directly in connection with the US Private
Placement or the other debt capital market issuances, and deducting VAT and
other expenses attributable to the US Private Placement or the other debt
capital market issuances.


 


“Obligor” means the Borrower or a Guarantor;


 


 “Original Financial
Statements” means:


 


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


 


(b)                               in relation to the 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;


 


“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 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:


 


(a)                                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


 


(b)                               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


 


(c)                                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


 


10

















 


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 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 Company’s financial year and each period of 12 months
ending on the last day of each quarter of the Company’s financial year;


 


 “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;


 


11

















 


(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 Company 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);


 


“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
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;


 


12

















 


“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  8 months from the first Utilisation Date,
provided that if such day is not a Business Day, it shall be the immediately
preceding Business Day;


 


“Total Commitments” means the aggregate of the Commitments,
being U.S.$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;


 


 “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
Company;


 


“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;


 


“U.S. Private Placement” means a US private placement in the
form of a note purchase facility or the issue of bonds, notes, debentures, loan
stock or any similar instrument by the Borrower the proceeds of which will
finance part of the purchase price of Target and the Target Group payable
pursuant to the Acquisition Documents;


 


“Utilisation” means a utilisation of the Facility;


 


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


 


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


 


“VAT” means value added tax as provided for in the Value
Added Tax Act 1994 and any other tax of a similar nature.


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


(viii)                     a time of day is a reference to 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.


 


14

















 


Section 2


The Facility


 


2                                      The
Facility


 


2.1                            The
Facility


 


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


 


2.2                            Finance
Parties’ rights and obligations


 


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


 


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


 


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


 


3                                      Purpose


 


3.1                            Purpose


 


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


 


4.2                            Further
conditions precedent


 


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


 


4.2.1                               in the case of any Loan, no Default is continuing or
would result from the proposed Loan; and


 


15

















 


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                               The Borrower may not deliver a Utilisation Request if as
a result of the proposed Utilisation 10 or more Loans would be outstanding.


 


4.3.2                               The Borrower may not request that a Loan be divided if,
as a result of the proposed division, 20 or more Loans would be outstanding.


 


16

















 


Section 3

Utilisation


 


5                                      Utilisation


 


5.1                            Delivery
of a Utilisation Request


 


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


 


5.2                            Completion
of a Utilisation Request


 


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


 


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


 


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


 


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


 


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


 


5.3                            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.$50,000,000 or, if less, the Available
Facility;


 


(ii)                               in integral multiples of US$50,000,000; and


 


(iii)                            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.


 


17
















 


Section 4

Repayment, Prepayment and Cancellation


 


6                                      Repayment


 


6.1                            Repayment
Loans


 


The Borrower shall repay any Loan made to it on the Termination Date.


 


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:


 


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


 


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


 


7.1.3                               the Borrower shall repay that Lender’s participation in
the Loans made to the Borrower on the last day of the Interest Period for each
Loan occurring after the Agent has notified the Company 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 the Borrower is, or will be, required to pay to a
Lender:


 


(i)                                  a Tax Payment; or


 


(ii)                               an Increased Cost,


 


(iii)                            the Borrower may, while the requirement continues, 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 Borrower in its
notification.


 


18

















 


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 Company (a “Control Event”) or (2) circumstances exist that might
reasonably give rise to the occurrence of a Control Event, the Company 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 any Lender (or if there are more than two Lenders, the Majority
Lenders):


 


(i)                                  determine or determines (as the case may be), acting
reasonably and in good faith, that the New Shareholder(s) are of a reputation
that gives that Lender (or if there are more than two Lenders, 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


 


(ii)                               deliver a written notice through the Agent to the Company
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 Borrower
(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                            Net
Proceeds out of issue of US Private Placement


 


7.4.1                               The Borrower must apply an amount equal to 100% of the
Net Proceeds of the US Private Placement or other debt capital markets
issuances in prepayment of the Facility.


 


7.4.2                               The date for such repayment or prepayment will be:


 


(i)                                  The earlier of (A) the last day of the then current
Interest Period for that Loan or (B) one month after the US Private Placement
or debt capital markets issuance; or


 


(ii)                               such earlier date as the Borrower may nominate at its
discretion


 


provided that to the
extent that the date for such repayment or prepayment is one month after the US
Private Placement or debt capital markets issuance, the Parties shall
co-operate in determining any relevant Interest Periods in order that no Break
Costs shall be applicable.


 


19

















 


7.5                            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 Company 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 Company, require the repayment of the
Loans, together with accrued interest on the Facility on the last day of the
Interest Period falling not less than 30 days after the receipt of such notice.


 


7.6                            Automatic
Cancellation


 


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


 


7.7                            Voluntary
prepayment of Loans


 


The Borrower may, if it gives the Agent not less than 5 Business Days’
(or such shorter period as the Majority Lenders may agree) prior notice and
subject to 7.9.2 prepay, the whole or any part of a Loan (but, if in part,
being a minimum amount of US$10,000,000).


 


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


 


7.8.1                               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 the 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
Company 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.


 


7.8.2                               On receipt of a notice referred to in paragraph 7.8.1
above, the Commitment of that Lender shall immediately be reduced to zero.


 


7.8.3                               On the last day of each Interest Period which ends after
the Company has given notice under paragraph 7.8.1 above (or, if earlier, the
date specified by the Company in that notice), the Borrower shall repay that
Lender’s participation in that Loan.


 


7.9                            Restrictions


 


7.9.1                               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, 


 


20

















 


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.


 


7.9.2                               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.


 


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


 


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


 


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


 


7.9.6                               If the 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.


 


21

















 


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
Borrower shall pay accrued interest on the relevant 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 the 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 Borrower of the determination
of a rate of interest under this Agreement.


 


22

















 


9                                      Interest
Periods


 


9.1                            Selection
of Interest Periods


 


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


 


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


 


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


 


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


 


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


 


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
the 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 Company 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 Loans


 


9.4.1                               Subject to paragraph 9.4.2 below, if two or more Interest
Periods end on the same date,


 


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


 


9.4.2                               Subject to Clause 4.3 (Maximum number of Loans) and
Clause 5.3 (Currency and amount), if the Borrower requests in a Selection
Notice that a Loan be divided into two or more Loans, that 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 Loan
immediately before its division.


 


23

















 


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 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
Company so requires, the Agent and the Company 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 Company, be
binding on all Parties.


 


10.4                     Break
Costs


 


10.4.1                        Subject to Clause 7.9.2, the 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 the
Borrower on a day other than the last day of an Interest Period for that Loan
or Unpaid Sum.


 


24

















 


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 Borrower shall pay to the Agent (for the account of
each Lender) an aggregate fee  computed
at the rate of 0.050 per cent per annum on that Lender’s Available Commitment
under the Facility during the Availability Period  from the date falling 60 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
Borrower shall pay to the Lenders a facility fee in the amount and at the times
agreed in the Facility Fee Letter.


 


11.3                     Agency
fee


 


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


 


25

















 


Section 6


Additional Payment
Obligations


 


12                               Tax
Gross-up and Indemnities


 


12.1                     Definitions


 


12.1.1                        In this Agreement:


 


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


 


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


 


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


 


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


 


“Treaty Lender”
means a Lender, described in paragraph (b) 
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 Company 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 Company 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:


 


26

















 


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


 


12.3                     Tax
indemnity


 


12.3.1                        The Borrower shall (within five Business Days of demand
by the Agent) pay to a Protected Party an amount equal to the loss, liability
or cost which that Protected Party determines (provided that such Protected
Party provides the Company 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 Facility or that arises on account of Tax under
legislation in force on the date of this Agreement.


 


27

















 


12.3.2                        Paragraph 12.3.1 above shall not apply:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


12.4                     Tax
Credit


 


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


 


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


 


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


 


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


 


12.5                     Stamp
taxes


 


The
Borrower shall pay and, within five Business Days of demand, indemnify each
Finance Party against any cost, loss or liability that Finance Party incurs in
relation to all stamp duty, registration and other similar Taxes payable in
respect of any Finance Document (excluding for the avoidance of doubt, any
stamp registration and other similar taxes arising or incurred in connection
with a transfer, assignment or novation of any Facility or 


 


28

















 


part
thereof, unless such transfer, assignment or novation is entered into at the
request of an Obligor).


 


12.6                     Value
added tax


 


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


 


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


 


13                               Increased
Costs


 


13.1                     Increased
costs


 


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


 


13.1.2                        In this Agreement “Increased Costs”
means:


 


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


 


(ii)                               an additional or increased cost; or


 


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


 


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


 


13.2                     Increased
cost claims


 


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


 


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


 


13.3                     Exceptions
to increased costs


 


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


 


29

















 


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


 


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


 


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


 


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


 


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


 


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


 


14                               Other
Indemnities


 


14.1                     Currency
indemnity


 


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


 


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


 


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


 


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


 


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


 


14.2                     Other
indemnities


 


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


 


14.2.1                        the occurrence of any Event of Default;


 


30

















 


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 the 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 the Borrower.


 


14.3                     Indemnity
to the Agent


 


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


 


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


 


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


 


15                               Mitigation
by the Lenders


 


15.1                     Mitigation


 


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


 


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


 


15.2                     Limitation
of liability


 


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


 


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


 


16                               Costs
and Expenses


 


16.1                     Amendment
costs


 


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


 


31

















 


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


 


16.2                     Enforcement
costs


 


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


 


32

















 


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
the Borrower of its obligations under the Finance Documents;


 


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


 


33

















 


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 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;


 


34

















 


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


 


35

















 


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 Company may request that any of its
Subsidiaries become an Additional Guarantor. That Subsidiary shall become an
Additional Guarantor if:


 


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


 


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


 


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


 


36

















 


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.


 


37
















 


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.


 


38

















 


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


 


39

















 


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 Company) and audited consolidated financial
statements (in the case of the 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 Company) and audited consolidated financial
statements (in the case of the 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 Company 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 Borrower’s ability to
perform its 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.


 


40

















 


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 


 


41

















 


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 the 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.


 


42

















 


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 Company 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 


 


43

















 


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 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 Company 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 Company or the 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 Company’s
auditors, it being agreed that should the Company’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 Company 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 Company 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 


 


44

















 


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 Company notifies the Agent of a change in
accordance with paragraph (i) above then the Company 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 Borrower 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 Borrower confirms 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 Borrower to all of
its 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


 


45

















 


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 Borrower can
provide without breaching any applicable law or regulation or contract.


 


19.5                     Notification of default


 


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


 


19.6                     Use of websites


 


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


 


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


 


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


 


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


 


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


 


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


 


19.6.3                        The 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 the
Borrower notifies the Agent under paragraph (i) or paragraph (v) above, all
information to be provided by the Borrower under this Agreement after the date
of that notice shall be supplied in paper form unless and until the Agent and
each 


 


46

















 


Website Lender
is satisfied that the circumstances giving rise to the notification are no
longer continuing.


 


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


 


19.7                     “Know your customer” checks


 


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);


 


47

















 


“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 Company 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 


 


48

















 


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 Company 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 Company 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 


 


49

















 


or car leasing company, in each case granted in the ordinary course of
the business of the relevant member of the Group;


 


(vi)                           any cash collateral granted in relation to the
issue of a Bank Guarantee up to an amount equal to €15,000,000 in the aggregate
at any time (without double counting any liability of the Borrower 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 Borrower shall, and the Company shall procure
that each Group member shall, do all acts as are reasonably practicable to
maintain, protect and safeguard the Intellectual Property which is necessary
for the business of the relevant member of the Group and not terminate or
discontinue the use of any such Intellectual Property save in each case when
failure to do so is reasonably likely to have a Material Adverse Effect.


 


21.5.2                        The Borrower shall not, and the Company 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 Company 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:


 


50

















 


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


 


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


 


(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 Company 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:


 


51

















 


(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 Company shall procure that no substantial change is made to the
general nature of the business of the Borrower 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 Company 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 Company shall ensure
that each member of the Group will) comply in all material respects with all
applicable Environmental Laws and obtain and maintain any requisite
Environmental Permits applicable to it in each case where failure to do so is
reasonably likely to have a Material Adverse Effect.


 


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


 


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


 


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


 


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


 


21.11              Taxation


 


Each Obligor shall pay all Taxes imposed upon it or its assets within
the time period allowed without incurring penalties where failure to do so is
reasonably likely to have a 


 


52

















 


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 Company 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 


 


53

















 


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 Borrower shall not:


 


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


 


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


 


21.15              Arm’s Length Basis


 


No Obligor shall, and the Company 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 Company 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.


 


54

















 


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 


 


55

















 


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


 


56

















 


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


 


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


 


(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 Company) is not or ceases to be a Subsidiary
of the Company 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.


 


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22.12              Litigation


 


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


 


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 Borrower:


 


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.


 


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


 


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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 Arranger and/or Underwriter (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 Company together with a notice
to the Borrower is required for an assignment or transfer by an Existing Lender
provided that no such consent is required following the occurrence of any Event
of Default which is continuing.


 


23.2.2                        The consent of the Company to an assignment or transfer
must not be unreasonably withheld or delayed provided
that with respect to any transfer other than to a Lender or an
Affiliate of a Lender, the Borrower may withhold its consent on the basis of
its then current relationship with the proposed New Lender..


 


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 other cost, tax or expense of whatsoever nature including the
payment of any Mandatory Cost,


 


59

















 


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.


 


23.3                     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.


 


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


 


60

















 


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 Borrower


 


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


 


23.7                     Disclosure
of information


 


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


 


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


 


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


 


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


 


61

















 


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;


 


24.1.3                        to any other third party where the Company 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


 


62

















 


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 Borrower.


 


25                               Changes
to the Obligors


 


25.1                     Assignment
and transfers by Obligors


 


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


 


64

















 


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


 


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


 


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


 


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


 


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


 


(iii)                            any notice or request made by the 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 Company.


 


26.10.2                 Alternatively the Agent may resign by giving notice to
the other Finance Parties and the Company, in which case the Majority Lenders
may appoint a successor Agent. Such successor Agent must be acceptable to the
Company 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 Company) may
appoint a successor Agent subject to such successor Agent being acceptable to
the Company 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 Company, 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 Company) 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, the Agent may not unless expressly
authorised in writing by the Borrower, deduct any amount from any Utilisation
requested by the 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


 


69

















 


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


 


71

















 


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 Company); 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 Company) specifies to be necessary, be amended to comply
with any generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in currency.


 


30                               Set-off


 


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


 


31                               Notices


 


31.1                     Communications
in writing


 


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


 


31.2                     Addresses


 


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


 


31.2.1                        in the case of the Borrower, that identified with 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


 


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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 Company) irrevocably
appoints the Company 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
Company 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


 


74

















 


(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


 


75

















 


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 Borrower 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 Borrower or Guarantors;


 


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


 


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


 


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


 


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


 


35.3                     Replacement
of a Lender


 


35.3.1                        If at any time any Lender becomes an Increased Cost
Lender, a Non-Funding Lender or a Non-Consenting Lender (each as defined below)
then the Borrower may:


 


76

















 


(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 the Borrower has given notice under this paragraph (i) (or, if
earlier, the date specified by the Borrower in that notice), the Borrower 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 Borrower shall have no right to replace the Agent;


 


(ii)                               neither the Agent nor any Lender shall have any
obligation to the Borrower to find a Replacement Lender;


 


(iii)                            in the event of a replacement of an Increased Cost
Lender, Non-Funding Lender or Non-Consenting Lender, such replacement must take
place no later than 10 days after the date on which the Increased Cost Lender
demanded payment of the relevant additional amounts or the date on which the
relevant Lender became a Non-Funding Lender or a Non-Consenting Lender (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 Company or the Agent (at the request of the Company)
have requested the Lenders to consent to a waiver or an amendment of


 


77

















 


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 Error! Reference source not
found. of Clause Error! Reference source not
found. (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.


 


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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.


 


79

















 


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.


 


80

















 


Schedule 1

The Parties


 


Part 1

The Obligors


 




	
  Name
  of the Borrower

  	
   

  	
  Registration number (or
  equivalent, if any)

  
	
  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

  






 


81

















 


Part 2

The Lenders


 


	
  Name of Lender

  	
   

  	
  Commitment

  (in U.S.$ )

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  333,333,334

  	
   

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

  	
   

  	
  166,666,666

  	
   

  
	
  Total

  	
   

  	
  U.S.$

  	
  500,000,000

  	
   

  
					



 


82

















 


Schedule 2

Conditions Precedent to initial Utilisation


 


1                                      Obligors


 


(a)


 


(i)           A copy of the constitutional documents of the
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 Borrower, issued as of a recent date by the Secretary of State or other
appropriate official of the 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 (b) 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).


 


 


83

















 


 


(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 Borrower 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 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 Company 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 Company 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.


 


 


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(d)          A copy of a mandate letter, duly executed, in
relation to the US Private Placement, dated on or about the date of this
Agreement, between the Company or the Borrower and the Lenders or their
respective Affiliates.


 


(e)           Evidence that the fees, costs and expenses then
due from the Borrower 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.


 


 


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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.


 


 


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


 


 


89
















 


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


 


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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 Company.


 


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.


 


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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.


 


103

















 


Signatures


 


The Company


 


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

  
			



 


 


The Borrower


 


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

  
			



 


105

















 


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


 


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

  
			



 


 


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

  



 


 


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

  



 


106