Exhibit 4.1 Ferrari 20-F 12.31.2015




Exhibit 4.1


	
	
	 

	 

	CREDIT AGREEMENT

	30 November 2015

	 

	Ferrari N.V.
FERRARI S.p.A.
FERRARI FINANCIAL SERVICES, INC.
FERRARI FINANCIAL SERVICES AG


and


THE BANKS


and


BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED
as Facility Agent 


and


BANCA IMI S.p.A.
BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED
BNP PARIBAS, ITALIAN BRANCH
CITIGROUP GLOBAL MARKETS LIMITED
CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK, MILAN BRANCH
J.P. MORGAN LIMITED
MEDIOBANCA - BANCA DI CREDITO FINANZIARIO S.p.A.
SOCIÉTÉ GÉNÉRALE CORPORATE & INVESTMENT BANKING
UBS LIMITED
UNICREDIT S.p.A.
as mandated lead arrangers and bookrunners


relating to term loan and multicurrency revolving credit facilities in an aggregate amount of up to €2,500,000,000



















Table of Contents
	
				
	Clause
	 
	Page
	


	 
	 
	 

	1
	Definitions and Interpretation
	4
	


	2
	The Facilities
	28
	


	3
	Purpose
	32
	


	4
	Conditions Precedent
	32
	


	5
	Drawdown
	33
	


	6
	Alternative Currencies – Revolving Facility
	35
	


	7
	Interest
	36
	


	8
	Repayment and Prepayment
	40
	


	9
	Cancellation
	45
	


	10
	Changes in Circumstances
	45
	


	11
	Payments
	48
	


	12
	Guarantee
	54
	


	13
	Additional Obligors
	57
	


	14
	Representations and Warranties
	58
	


	15
	Undertakings
	61
	


	16
	Default
	65
	


	17
	Pro Rata Sharing
	67
	


	18
	The Facility Agent, the Arrangers and the Banks
	68
	


	19
	Fees and Expenses
	76
	


	20
	Amendments and Waivers
	79
	


	21
	Miscellaneous
	82
	


	22
	Notices
	82
	


	23
	Assignments and Transfers
	84
	


	24
	Confidentiality of Funding Rates and Reference Bank Quotations
	90
	


	25
	Indemnities
	92
	


	26
	Law and Jurisdiction
	93
	








	
				
	Schedule
	 
	Page
	


	 
	 
	 

	1
	Commitments
	95
	


	2
	Conditions Precedent
	96
	


	Part 1 
	Conditions Precedent to First Drawdown for the Facilities
	96
	


	Part 2 
	Acceding Obligor Conditions Precedent
	99
	


	3
	Conditions Subsequent
	101
	


	4
	Form of Drawdown Notice
	102
	


	5
	Form of Selection Notice
	103
	


	6
	Form of Transfer Certificate
	104
	


	7
	Form of Obligor Accession Memorandum
	107
	


	8
	Form of Resignation Notice
	108
	


	9
	Form of Margin Certificate
	109
	


	10
	Form of Extension Request
	110
	


	11
	List of Designated Entities
	111
	


	12
	Form of Designated Entity Accession Agreement
	112
	


	13
	Form of Increase Confirmation
	113
	


	14
	LMA Form of Confidentiality Undertaking
	115
	


	15
	Form of Reallocation Notice
	119
	


	 
	 
	 

	Signatories
	 
	120
	

















THIS CREDIT AGREEMENT (this Agreement) is made in London on 30 November 2015
BY:
		
	(1)
	FERRARI N.V., a public limited liability company (naamloze vennootschap) incorporated in the Netherlands, having its official seat (statutaire zetel) in Amsterdam, the Netherlands and having its principal place of business at Via Abetone Inferiore N.4, I-41053 Maranello, Italy, registered with the trade register of the chamber of commerce under number 57991561 (the Original Company);


		
	(2)
	FERRARI S.p.A., a company incorporated in Italy as a Società per Azioni con un unico socio, having its registered office at Via Emilia Est 1163, Modena (Italy), and registered with the Chamber of Commerce of Modena under number 00159560366, Codice Fiscale and Partita IVA No. 00159560366 (Ferrari Italy);


		
	(3)
	FERRARI FINANCIAL SERVICES, INC., a company incorporated in the state of Delaware, whose registered office is at c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801 and principal place of business is located at 250 Sylvan Avenue, Englewood Cliffs, NJ 07632 (Ferrari US);


		
	(4)
	FERRARI FINANCIAL SERVICES AG, a company incorporated in Germany, having its registered office at Pullach im Isartal, registered with the local court (Amtsgericht) of Munich under docket number HRB 128558 (Ferrari Germany);


		
	(5)
	THE BANKS listed in Schedule 1 (Commitments); 


		
	(6)
	THE DESIGNATED ENTITIES listed in Schedule 11 (List of Designated Entities) as the Designated Entities (as that term is defined below); 


		
	(7)
	BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED as the Facility Agent (as that term is defined below); and


		
	(8)
	BANCA IMI S.p.A., BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED, BNP PARIBAS, ITALIAN BRANCH, CITIGROUP GLOBAL MARKETS LIMITED, CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK, MILAN BRANCH, J.P. MORGAN LIMITED, MEDIOBANCA - BANCA DI CREDITO FINANZIARIO S.p.A., SOCIÉTÉ GÉNÉRALE CORPORATE & INVESTMENT BANKING, UBS LIMITED and UNICREDIT S.p.A. as mandated lead arrangers and bookrunners of the facilities made available under this Agreement (together the Arrangers and each, an Arranger).




IT IS AGREED as follows:
		
	1.
	Definitions and Interpretation


		
	1.1
	Definitions


In this Agreement:
Acceptable Bank means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A3/A- or higher by Standard & Poor’s Rating Service or Moody’s Investor Services Limited or a comparable rating from an internationally recognised credit rating agency.
Accession Memorandum means a memorandum substantially in the form set out in Schedule 7 (Form of Obligor Accession Memorandum).
Additional Guarantor means any Industrial Subsidiary of the Company which has become an Additional Guarantor in accordance with Clause 13 (Additional Obligors).

4








Additional Information means any written information prepared for the purpose of providing any data requested in accordance with this Agreement which is not included in the Company’s consolidated financial statements.
Additional RCF Borrower means any Industrial Subsidiary of the Company which has become an Additional RCF Borrower in accordance with Clause 13 (Additional Obligors).
Advance means a Term Advance or a Revolving Facility Advance.
Agency Fee Letter means the letter dated on or about the Signing Date from the Facility Agent to the Obligors' Agent relating to certain fees payable to the Facility Agent in relation to this Agreement.
Alternative Currencies means both:
		
	(a)
	the Committed Currencies; and 


		
	(b)
	any other freely convertible and transferable currencies (other than Euros) readily available to the Banks in the European interbank market and which has been approved by the Facility Agent and all the Banks.


Anti-Corruption Laws means the United States of America Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010 and all other applicable anti-bribery or anti-corruption laws.
Anti-Money Laundering Laws means the Executive Order, the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.), the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956 et seq.), the USA Patriot Act and all other applicable anti-money laundering laws.
Available Commitment means, in relation to a Facility, a Bank’s Commitment under that Facility minus (subject as set out below):
		
	(a)
	the Original Euro Amount of its Participation in any outstanding Advances under that Facility; and


		
	(b)
	in relation to any proposed Advance, the Euro Equivalent of its Participation in any other Advances that are due to be made under that Facility on or before the proposed Drawdown Date.


For the purposes of calculating a Bank’s Available Commitment in relation to any proposed Revolving Facility Advance, the Original Euro Amount of that Bank’s Participation in any Revolving Facility Advance that is due to be repaid or prepaid on or before the proposed Drawdown Date shall not be deducted from that Bank’s Commitment under the Revolving Facility.
Available Facility means, in relation to a Facility, the aggregate for the time being of each Bank’s Available Commitments under that Facility. 
Banks means the banks and other financial institutions listed in Schedule 1 (Commitments), and any person which becomes a Party in accordance with Clause 2.2 (Defaulting Bank/Illegality Increase) and, unless the context otherwise requires, any Bank Transferee, together with their respective successors in title, provided that any bank or financial institution which transfers all of its Commitments in accordance with Clause 23.4 (Transfers by Banks) shall cease to be a Bank.
Bank Transferee has the meaning given to that term in Clause 23.4(b) (Transfers by Banks).
Basel III has the meaning given to it in Clause 20.5(e) (Replacement of a Bank). 
Borrower means:
		
	(c)
	in relation to Facility A, Ferrari Holdco;


		
	(d)
	in relation to Facility B, an Original Borrower; or



5








		
	(e)
	in relation to the Revolving Facility, a RCF Borrower.


Breakage Costs means any amounts payable under Clause 25.1 (Breakage Costs Indemnity).
Business Day means:
		
	(a)
	in relation to an Advance denominated in an Alternative Currency (other than Dollars), a day (other than a Saturday or a Sunday) on which banks are generally open for business in London, Milan and in the principal financial centre of the country or state of that Alternative Currency; 


		
	(b)
	in relation to a payment or rate fixing in Euros or other matter relating to Euros, a day (other than a Saturday or Sunday) on which the banks are generally open for business in London and Milan and on which the Trans-European Automated Real-time Gross Settlement Express Transfer System (TARGET) is operating;


		
	(c)
	in relation to Advances denominated in Dollars, a day (other than a Saturday or a Sunday) on which banks are generally open for business in London, Milan and New York; and


		
	(d)
	for all other purposes, a day (other than a Saturday or a Sunday) on which banks are generally open for business in Turin, Milan and London.


Certified Copy means, in relation to a document, a copy of that document certified a true, complete and accurate copy of the original by a duly authorised officer or representative of the relevant company.
Change means, in relation to a Bank (or any company of which that Bank is a Subsidiary) the introduction, implementation, repeal, withdrawal or change in, or in the official interpretation or application of, (a) any law or regulation or (b) any official directive, requirement, request or guidance (whether or not having the force of law but if not having the force of law, one which applies generally to a class or category of financial institutions of which that Bank (or that company) forms part and compliance with which is in accordance with the general practice of those financial institutions) of the European Community, any central bank including the European Central Bank, Financial Services Authority, or any other fiscal, monetary or regulatory authority.
Code means the U.S. Internal Revenue Code of 1986.
Committed Currency means Dollars and GBP.
Commitment means a Facility A Commitment, Facility B Commitment or a Revolving Facility Commitment.
Company means: 
		
	(a)
	until a transaction described under paragraphs (A) to (D) of the definition of Change of Control in Clause 8.5(a) (Mandatory prepayment ‐ change of control) occurs, Ferrari Holdco; and


		
	(b)
	thereafter, New Holdco.


Confidential Information means all information relating to the Company, any Obligor, the Group, the Financing Documents or the Facilities of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Financing Documents or the Facilities from either:
		
	(a)
	any member of the Group or any of its advisers; or


		
	(b)
	another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,


in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that: 

6








		
	(i)
	is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause ý23.8 (Confidentiality); or


		
	(ii)
	is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or


		
	(iii)
	is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and 


		
	(iv)
	is any Funding Rate or Reference Bank Quotation. 


Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the LMA as set out in ýSchedule 14 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Facility Agent.
CRD IV means: 
		
	(a)
	Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and


		
	(b)
	Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.


Default means any event specified as such in Clause 16.1 (Default).
Defaulting Bank means any Bank:
		
	(a)
	which has failed to make its Participation in an Advance available or has notified the Facility Agent or the Obligors' Agent that it will not make its Participation in an Advance available by the Drawdown Date for an Advance in accordance with Clause 5.6ý (Participations); 


		
	(b)
	which has otherwise rescinded or repudiated a Financing Document, or


		
	(c)
	with respect to which an Insolvency Event has occurred and is continuing;


unless, in the case of paragraph (a) above:
		
	(i)
	its failure to pay is caused by:


		
	(A)
	administrative or technical error; or


		
	(B)
	a Disruption Event; and


payment is made within five (5) Business Days of its due date; or
		
	(ii)
	the Bank is disputing in good faith whether it is contractually obliged to make the payment in question and has sent written notice to the Obligors' Agent stating the grounds on which it is disputing that payment.


Designated Entity has the meaning given to it in Clause 2.7 (Designated Entities).
Disruption Event means either or both of:
		
	(a)
	a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities 



7








(or otherwise in order for the transactions contemplated by the Financing Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
		
	(b)
	the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:


		
	(i)
	from performing its payment obligations under the Financing Documents; or


		
	(ii)
	from communicating with other Parties in accordance with the terms of the Financing Documents,


and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
Drawdown Date means the date on which the relevant Advance is made, or is proposed to be made.
Drawdown Notice means a notice substantially in the form set out in Schedule 4 (Form of Drawdown Notice).
Drawdown Period means:
		
	(a)
	in relation to Facility A, the period from and including the Signing Date to and including 5 April 2016; 


		
	(b)
	in relation to Facility B, the period from and including the Signing Date to and including 5 April 2016; and


		
	(c)
	in relation to the Revolving Facility, the period from and including the Signing Date to and including the date falling one month before the Termination Date applicable to the Revolving Facility.


Dutch Civil Code means the Burgerlijk Wetboek.
Dutch Guarantor means a Guarantor incorporated under Dutch law.
Dutch Obligor means:
		
	(a)
	Ferrari Holdco; or


		
	(b)
	any Borrower or Guarantor incorporated under Dutch law.


Encumbrance means any mortgage, charge, pledge, lien, encumbrance or similar security interest.
ERISA means the US Employee Retirement Income Security Act of 1974, as amended from time to time.
EURIBOR means, in relation to an Advance or overdue amount in Euros and in relation to a particular Interest Period:
		
	(a)
	the applicable Screen Rate as of 11.00 a.m. (Brussels time) on the second TARGET Day (which is also a London Business Day) before the first day of that Interest Period; or


		
	(b)
	as otherwise determined pursuant to Clause 7.8 (Unavailability of Screen Rate), 


and if, in either case, that rate is less than zero, EURIBOR shall be deemed to be zero.
Euro Equivalent means, in relation to an amount in an Alternative Currency on the day on which the calculation falls to be made, the amount of Euros which could be purchased with that amount of the Alternative Currency using the Facility Agent's spot rate of exchange for the purchase in the London foreign exchange market of Euros with the Alternative Currency at or about 11.00 a.m. two Business Days before that date.
Euro Reference Banks means in relation to EURIBOR such bank or banks as may consent to their appointment from time to time, and as agreed between the Facility Agent (acting on the instructions of the Majority Banks) and the Obligors' Agent.

8








Facility means Facility A, Facility B or the Revolving Facility.
Facility A means the bridge term loan facility granted to Ferrari Holdco under this Agreement as described in Clause 2.1(a)(i) (The Facilities).
Facility A Advance means an advance made or to be made under Facility A or the principal amount outstanding for the time being of that advance.
Facility A Commitment means:
		
	(a)
	in relation to an Original Bank, the amount set opposite its name under the heading Facility A Commitments in Schedule 1 (Commitments) and the amount of any other Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Defaulting Bank/Illegality Increase); and


		
	(b)
	in relation to any other Bank, the amount of any Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Defaulting Bank/Illegality Increase).


Facility A Extension Option means the extension option set out in Clause 5.7 (Facility A Extension Option).
Facility Agent means Bank of America Merrill Lynch International Limited in its capacity as agent for the Banks and each successor agent appointed in accordance with Clause 18.16 (Resignation).
Facility B means the term loan facility granted to the Original Borrowers under this Agreement as described in Clause 2.1(a)(ii) (The Facilities).
Facility B Advance means an advance made or to be made under Facility B or the principal amount outstanding for the time being of that advance.
Facility B Commitment means:
		
	(a)
	in relation to an Original Bank, the amount set opposite its name under the heading Facility B Commitments in Schedule 1 (Commitments) and the amount of any other Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Defaulting Bank/Illegality Increase); and


		
	(b)
	in relation to any other Bank, the amount of any Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Defaulting Bank/Illegality Increase).


Facility B Repayment Date means each date set out in paragraph (b) of Clause 8.2 (Repayment of Facility B Advances) for the repayment of the Facility B Advances.
Facility Period means the period starting on the Signing Date and ending on the date on which all the obligations and liabilities of the Obligors under the Financing Documents are discharged in full and none of the Finance Parties has any continuing obligation in relation to the Facilities.
FATCA means:
		
	(a)
	sections 1471 to 1474 of the Code or any associated regulations;


		
	(b)
	any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law, regulation or other official guidance referred to in paragraph (a) above; or


		
	(c)
	any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.


FATCA Application Date means:

9








		
	(a)
	in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;


		
	(b)
	in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or


		
	(c)
	in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,


or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the Signing Date.
FATCA Deduction means a deduction or withholding from a payment under a Financing Document required by FATCA.
FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.
FCA means Fiat Chrysler Automobiles N.V..
FCA Group means FCA and its Subsidiaries.
FCA Note means certain indebtedness incurred by the Original Company to FCA and evidenced in a note currently expressed to mature on 4 April 2016.
FE Newco means FE New N.V., a public limited liability company (naamloze vennootschap) incorporated in the Netherlands, having its official seat (statutaire zetel) in Amsterdam, the Netherlands and having its registered office address at Via Abetone Inferiore N.4, I-41053 Maranello, Italy, registered with the Dutch trade register under number 64060977.
Ferrari Holdco means:
		
	(f)
	until the Separation Date, the Original Company; and


		
	(g)
	thereafter, FE Newco (to be renamed Ferrari N.V.).


Finance Parties means the Banks, the Facility Agent and the Arrangers.
Financial Indebtedness means any indebtedness for or in respect of:
		
	(a)
	moneys borrowed;


		
	(b)
	any acceptance credit (including any dematerialised equivalent) treated as a borrowing in accordance with IFRS;


		
	(c)
	any bond, note, debenture, loan stock or other similar instrument;


		
	(d)
	any preference share which is mandatorily redeemable or redeemable at the option of the holder of that share;


		
	(e)
	any agreement treated as a finance lease in accordance with IFRS;


		
	(f)
	receivables sold or discounted (otherwise than on a non-recourse basis) to the extent treated as a borrowing in accordance with IFRS;


		
	(g)
	the acquisition cost of any asset to the extent payable after its acquisition or possession by the party liable where the deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset and to the extent treated as a borrowing in accordance with IFRS;



10








		
	(h)
	any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and, except for non-payment of an amount, the then mark to market value of the derivative transaction, determined in accordance with IFRS, will be used to calculate its amount);


		
	(i)
	any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing to the extent treated as a borrowing in accordance with IFRS; or


		
	(j)
	without double counting, any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in the above paragraphs.


Financial Services JV means a Joint Venture between the Company and/or a Financial Services Subsidiary and one or more third parties which is not a Subsidiary of the Company and which carries on the offer and sale of financial services products to customers, including, without limitation, members of the Group (and other related support activities incidental to the offer and sale of such financial services products including, without limitation, input financing, the purchase and sale of equipment and rental business activities) in any of the following areas:
		
	(a)
	retail financing for the purchase, contract hire, renting or lease of equipment, including, without limitation, equipment manufactured by a member of the Group or any other manufacturer whose products are from time to time sold through the dealer network of a member of the Group;


		
	(b)
	other retail and wholesale financing programs reasonably related thereto, including, without limitation, financing to the dealer network of any member of the Group;


		
	(c)
	insurance and credit card products and services reasonably related thereto, together with the underwriting, marketing, servicing and other related support activities incidental to the offer and sale of such financial services products; and


		
	(d)
	factoring and/or licensed banking activities.


Financial Services Subsidiary means:
		
	(a)
	a Subsidiary of the Company which carries on no material business other than the offer and sale of financial services products (and other related support activities incidental to the offer and sale of such financial services products including, without limitation, input financing, the purchase and sale of equipment and rental business activities) to customers or suppliers of the Group (including, but not limited to, customers or suppliers that are members of the Group) in any of the following areas:


		
	(i)
	retail financing for the purchase, contract hire, renting or lease of new or old equipment including, without limitation, that manufactured by a member of the Group or any other manufacturer whose products are from time to time sold through the dealer network of a member of the Group;


		
	(ii)
	other retail and wholesale financing programs reasonably related thereto, including, without limitation, financing to the dealer network of any member of the Group;


		
	(iii)
	insurance, credit card, vehicle service and extended warranty products and services reasonably related thereto, together with the underwriting, marketing, servicing and other related support activities incidental to the offer and sale of such financial services products; and


		
	(iv)
	factoring and/or licensed banking activities; or


		
	(b)
	a holding company of a Financial Services Subsidiary which carries on no material business or activity other than holding shares in that Financial Services Subsidiary and/or activities described in paragraph (a) above.


Financial Year means, in relation to an Obligor, each accounting period of 12 months in respect of which it prepares its financial statements.

11








Financing Document means this Agreement, each Accession Memorandum, each Resignation Notice, the Agency Fee Letter, the Upfront Fees Letter or any other document designated as such by the Facility Agent and the Company or the Obligors' Agent.
First Demerger has the meaning given to that term on page 135 in the section “The Restructuring and Separation Transactions” of Ferrari Holdco’s F-1.
First Drawdown Date means the date on which the first Advance is made under this Agreement.
Funding Rate means any rate notified by a Bank to the Facility Agent pursuant to Clause 10.3(c)(iii) (Market Disruption).
GAAP means, in relation to a company, accounting principles, concepts, bases and policies generally adopted and accepted in the jurisdiction of its incorporation or, if appropriate, IFRS.
German Obligor means:
		
	(h)
	Ferrari Germany; or


		
	(i)
	any Borrower or Guarantor incorporated under German law.


Group means the Company and its Subsidiaries.
Guarantor means:
		
	(a)
	Ferrari Holdco and New Holdco; or


		
	(b)
	any Additional Guarantor.


IFRS means International Financial Reporting Standards including International Accounting Standards and related interpretations issued or adopted by the International Accounting Standards Board and as applied in the Company's financial statements.
Impaired Facility Agent means the Facility Agent at any time when:
		
	(a)
	it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Financing Documents by the due date for payment;


		
	(b)
	the Facility Agent otherwise rescinds or repudiates a Financing Document;


		
	(c)
	(if the Facility Agent is also a Bank) it is a Defaulting Bank under paragraph (a) or (b) of the definition of Defaulting Bank; or


		
	(d)
	an Insolvency Event has occurred and is continuing with respect to the Facility Agent,


unless, in the case of paragraph (a) above:
		
	(i)
	its failure to pay is caused by:


		
	(A)
	administrative or technical error; or


		
	(B)
	a Disruption Event; and


payment is made within five (5) Business Days of its due date; or
		
	(ii)
	the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question and has sent written notice to the Obligors' Agent stating the grounds on which it is disputing that payment.


Increase Confirmation means a confirmation substantially in the form set out in Schedule 13 (Form of Increase Confirmation).

12








Industrial Group means the Company and its Industrial Subsidiaries.
Industrial Subsidiaries means each Subsidiary of the Company other than a Financial Services Subsidiary.
Information Package means the set of documents to be posted with the Original Company's prior approval on the Debtdomain secured website entitled "Ferrari N.V.".
Insolvency Event in relation to a Finance Party means that the Finance Party:
		
	(a)
	is dissolved (other than pursuant to a consolidation, amalgamation or merger);


		
	(b)
	becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;


		
	(c)
	makes a general assignment, arrangement or composition with or for the benefit of its creditors;


		
	(d)
	institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;


		
	(e)
	has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:


		
	(i)
	results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or


		
	(ii)
	is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;


		
	(f)
	has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);


		
	(g)
	seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;


		
	(h)
	has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;


		
	(i)
	causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or


		
	(j)
	takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.


Interest Period means each period determined in accordance with Clause 7 (Interest) for the purpose of calculating interest on Advances or overdue amounts.
Interpolated Screen Rate means in relation to EURIBOR or LIBOR for any Advance or overdue amount, the rate which results from interpolating on a linear basis between:

13








		
	(a)
	the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Advance or overdue amount; and


		
	(b)
	the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Advance or overdue amount,


each as of:
		
	(i)
	11.00 a.m. on the applicable Rate Fixing Day (in respect of the LIBOR Screen Rate); or 


		
	(ii)
	11.00 a.m. (Brussels time) on the second TARGET Day before the first day of that Interest Period (in respect of the EURIBOR Screen Rate),


for the currency of that Advance.
Italian Banking Act means the legislative decree n. 385 dated September 1, 1993, as amended from time to time.
Italian Borrower means:
		
	(a)
	Ferrari Italy;


		
	(b)
	any Borrower incorporated in Italy; or


		
	(c)
	any Borrower having its registered office in Italy.


Italian Civil Code means the Italian codice civile, the initial version of which was approved by Italian Royal Decree No. 262 of 16 March 1942.
Italian Guarantor means:
		
	(a)
	any Guarantor incorporated in Italy; or


		
	(b)
	any Guarantor having its registered office in Italy.


Italian Insolvency Act means Royal Decree No. 267 of 16 March 1942, as amended from time to time.
Italian Obligor means an Italian Borrower or an Italian Guarantor.
Joint Venture means any joint venture entity, whether a company, unincorporated form, undertaking, association, joint venture or partnership or any other joint venture entity.
Lending Office means the office(s) and/or Designated Entities notified by a Bank to the Facility Agent:
		
	(a)
	on or before the date it becomes a Bank; or


		
	(b)
	by not less than five Business Days' notice,


as the office(s) and/or Designated Entities through which it will perform its obligations under this Agreement.
LIBOR means, in relation to an Advance or overdue amount and in relation to a particular Interest Period:
		
	(a)
	the applicable Screen Rate as of 11.00 a.m. (London time) on the applicable Rate Fixing Day; or


		
	(b)
	as otherwise determined pursuant to Clause 7.8 (Unavailability of Screen Rate),


and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.
Libor Reference Banks means in relation to LIBOR such bank or banks as may consent to their appointment from time to time, and as agreed between the Facility Agent (acting on the instructions of the Majority Banks) and the Obligors' Agent.

14








Limitation Acts means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984 or equivalent legislation in any country other than the UK.
LMA means the Loan Market Association.
Loan means, at any time, the aggregate of all Advances outstanding at that time.
London Business Day means a day (other than a Saturday or Sunday) on which banks are open for general interbank business in London.
Majority Banks means a group of Banks whose Commitments (or, if the Total Commitments have been reduced to zero, whose Commitments immediately prior to such reduction) together exceed 662⁄3 per cent. of the Total Commitments (taking no account, for the purposes of this definition, of the last sentence in Clause 16.2 (Acceleration)).
Margin means the rate per annum determined in accordance with Clause 7.10 (Margin).
Margin Certificate means a certificate substantially in the form of Schedule 9 (Form of Margin Certificate) with any amendments which the Facility Agent and the Company or the Obligors’ Agent may agree.
Marketing Investment Dealership means any Subsidiary of the Company (disregarding the reference to “Marketing Investment Dealership” in the definition of “Subsidiary”) whose sole business is operating an automobile dealership and which is commonly referred to as a marketing investment dealership.
Material Adverse Effect means any effect which is materially adverse to:
		
	(a)
	the business or financial condition of the Group taken as a whole; or


		
	(b)
	the ability of any Obligor to perform its obligations under the Financing Documents.


Material Subsidiary means any Subsidiary of the Company:
		
	(a)
	the total assets or net revenues of which on an unconsolidated basis (excluding intra-group items and as determined from its most recent financial statements on the basis of which the Company's most recent audited consolidated financial statements were prepared) constitutes 10 per cent. or more of the consolidated total assets or net revenues of the Group (as determined from the Original Financial Statements or, if later, the Company's most recent audited consolidated financial statements); or


		
	(b)
	which is a holding company of a Subsidiary falling within paragraph (a) above,


but excluding any Subsidiary of the Company incorporated in China or India (or any state or province thereof) in respect of which the Company’s legal and beneficial ownership (direct or indirect) is less than 100%.
Merger has the meaning given to that term on page 136 in the section “The Restructuring and Separation Transactions” of Ferrari Holdco’s F-1.
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)
	(subject to paragraph (c) below) 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; and


		
	(c)
	if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.


The above rules will only apply to the last month of any period.

15








New Holdco has the meaning given to that term in Clause 8.5(a) (Mandatory prepayment ‐ change of control).
Non-Consenting Bank has the meaning given to that term in Clause 20.5 (Replacement of a Bank).
Non-OECD Country means a country which is not an OECD Country.
Non-recourse Securitisation means any securitisation, asset backed financing or transaction having a similar effect under which an entity (or entities in related transactions) on commercially reasonable terms:
		
	(a)
	acquires receivables for principally cash consideration or uses existing receivables; and


		
	(b)
	issues any notes, bonds, commercial paper, loans or other securities (whether or not listed on a recognised stock exchange) to fund the purchase of or otherwise backed by those receivables and/or any shares or other interests referred to in paragraph (j)(ii) of the definition of Permitted Encumbrance and the payment obligations in respect of such notes, bonds, commercial paper, loans or other securities:


		
	(i)
	are secured on those receivables, assets or revenues; and


		
	(ii)
	are not guaranteed by any member of the Group (other than as a result of any Encumbrance which is granted by any member of the Group as permitted by paragraph (j) of the definition of Permitted Encumbrance or as to the extent of any Standard Securitisation Undertakings).


Non-recourse Securitisation Debt means any Financial Indebtedness incurred by a Securitisation Entity pursuant to a securitisation relating to receivables where the recourse in respect of that Financial Indebtedness to any Obligor or member of the Industrial Group (other than the Securitisation Entity) is limited to:
		
	(a)
	those receivables and/or related insurance, assets or revenues and/or any Standard Securitisation Undertakings; and


		
	(b)
	if those receivables, assets or revenues comprise all or substantially all of the business of such Securitisation Entity, the shares or other interests of any member(s) of the Group in such Securitisation Entity.


Obligor means a Borrower or a Guarantor.
Obligors' Agent means the Company or such other Obligor appointed as such from time to time by the Company by notice to the Facility Agent.
OECD Countries means Australia, Austria, Belgium, Canada, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Republic of Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States of America.
Original Bank means the banks and other financial institutions listed in Schedule 1 (Commitments).
Original Borrower means the Company, Ferrari Italy, Ferrari US or Ferrari Germany (together, the Original Borrowers).
Original Euro Amount means:
		
	(a)
	in relation to an Advance, or a Participation in an Advance, denominated in Euros, the amount of that Advance or that Participation, as the case may be; and


		
	(b)
	in relation to an Advance, or a Participation in an Advance, denominated in an Alternative Currency, the Euro Equivalent of the amount of that Advance, or that Participation, as the case may be, calculated in respect of the Drawdown Date of that Advance,


provided that if all or part of an Advance is not made or is repaid or prepaid, the Original Euro Amount of that Advance and of the Participations of the Banks in that Advance shall be correspondingly reduced.

16








Original Facility A Termination Date means the date falling 12 months from the Signing Date.
Original Financial Statements means: 
		
	(a)
	the audited consolidated financial statements of the Group for the Original Company’s financial year ending 31 December 2014 (as included in the Ferrari N.V. Form F-1); and


		
	(b)
	the consolidated financial statements of the Group for the Original Company’s first three quarters of the financial year ending 31 September 2015.


Participation means, in relation to a Bank and an Advance, the part of that Advance made available or to be made available by that Bank and thereafter the part of that Advance owing to that Bank from time to time.
Participating Member State means any member state of the European Union that has the Euro as its lawful currency in accordance with the legislation of the European Union relating to Economic and Monetary Union.
Party means a party to this Agreement.
Permitted Disposal means any disposal:
		
	(a)
	of assets (other than receivables) made in the ordinary course of business of the disposing entity on arm's length terms; or


		
	(b)
	of surplus, obsolete, redundant assets or assets at the end of their useful lives, in each case on arm's length terms, or of manufacturing plants where production has ceased but which remain a cost to the Group; or


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


		
	(d)
	of shares in a Financial Services Subsidiary on arm's length terms; or


		
	(e)
	of cash for a purpose not restricted under this Agreement; or


		
	(f)
	required by any anti-trust law or legally binding anti-trust decree, regulation or order by any governmental authority or agency; or


		
	(g)
	of a tax credit on arm's length terms pursuant to an arrangement under which there is no recourse to any member of the Group; or


		
	(h)
	from one member of the Group to another member of the Group; or


		
	(i)
	of receivables, assets or revenues on arm's length terms for fair value: 


		
	(i)
	in the ordinary course of business of the disposing entity on a non-recourse basis, derecognised by Obligors and members of the Industrial Group in accordance with IFRS;


		
	(ii)
	directly or indirectly to a Securitisation Entity provided that those receivables, assets or revenues are used for the sole purpose of raising Non-recourse Securitisation Debt pursuant to a Non-recourse Securitisation; or


		
	(iii)
	in the ordinary course of business of the disposing entity on a recourse basis or, in any case, not derecognised by the Obligors or members of the Industrial Group in accordance with IFRS; or


		
	(j)
	of assets subject to any option disclosed in the Original Financial Statements; or


		
	(k)
	on arm's length terms for fair value (including for the avoidance of doubt, disposals of receivables).


Permitted Encumbrance means:

17








		
	(a)
	any Encumbrance created or outstanding on the Signing Date (including any substitution, replacement or variation of the assets subject to any such Encumbrance), provided that the principal amount of Financial Indebtedness outstanding and/or committed to be made available (in each case) secured by any such Encumbrance is not increased after the Signing Date nor the maturity date of such Financial Indebtedness extended; or


		
	(b)
	any Encumbrance arising by operation of law (or by contract having equivalent effect) in the ordinary course of business; or


		
	(c)
	any retention of title to, or other Encumbrance over, goods supplied to any Obligor or member of the Industrial Group where such retention or Encumbrance is required by the supplier in the ordinary course of its business and on customary terms and the goods in question are supplied on credit; or


		
	(d)
	any Encumbrance over assets relating to an IFRIC 4 arrangement and securing Financial Indebtedness arising under that IFRIC 4 arrangement; or


		
	(e)
	any other Encumbrance arising under finance leases, hire purchase, conditional sale agreements or other agreements for the acquisition of assets on deferred payment terms over the asset, provided that the aggregate principal amount outstanding of all Financial Indebtedness arising under such arrangements and secured by such Encumbrances does not at any time exceed the amount set out in paragraph (p) of the definition of Permitted Subsidiary Indebtedness or its equivalent in other currencies; or


		
	(f)
	any Encumbrance over any assets (or documents of title thereto) acquired by any Obligor or member of the Industrial Group after the Signing Date, provided that:


		
	(i)
	any such Encumbrance is in existence before such acquisition and is not created in contemplation of such acquisition; and


		
	(ii)
	the amount secured by such Encumbrance has not been increased in contemplation of, or since the date of the acquisition of the asset concerned on which such Encumbrance was created; or 


		
	(g)
	any Encumbrance over any assets (or documents of title thereto) of any person acquired by any Obligor or member of the Industrial Group after the Signing Date, provided that:


		
	(i)
	any such Encumbrance is in existence before such acquisition and is not created in contemplation of such acquisition; and


		
	(ii)
	the amount secured by such Encumbrance has not been increased in contemplation of, or since the date of the acquisition of that person; or


		
	(h)
	any Encumbrance created in favour of a plaintiff or defendant in any action of the court or tribunal before whom such action is brought as security for costs or expenses where an Obligor or member of the Industrial Group is prosecuting or defending such action in its bona fide interests (whether or not the underlying action relates to Financial Indebtedness or claims in respect of it); or


		
	(i)
	any Encumbrance created pursuant to any order of attachment, distraint, garnishee order or injunction restraining disposal of assets or similar legal process arising in connection with court proceedings (whether or not the underlying proceedings relate to Financial Indebtedness or claims in respect of it); or


		
	(j)
	any Encumbrance over:


		
	(i)
	the receivables or other assets or revenues of a Securitisation Entity (and any bank account to which such proceeds are deposited or other bank account operated as part of any such securitisation) which are subject to a Non-recourse Securitisation as security for Non-recourse 



18








Securitisation Debt raised by such Securitisation Entity in respect of such receivables or other assets or revenues; and/or
		
	(ii)
	the shares or other interests owned by any member of the Group in any Securitisation Entity as security for Non-recourse Securitisation Debt raised by such Securitisation Entity provided that the receivables, revenues or assets which are the subject of the relevant Non-recourse Securitisation comprise all or substantially all of the business of such Securitisation Entity; and/or


		
	(iii)
	receivables permitted to be disposed of pursuant to paragraph (i)(iii) of the definition of Permitted Disposal; or


		
	(k)
	any Encumbrance provided in favour of any bank or governmental (central or local), intergovernmental, multilateral or supranational bank, body, agency, department or other authority securing any Financial Indebtedness under a Subsidised Loan Scheme where the provision of such Encumbrance is required for the relevant transaction; or


		
	(l)
	pledges of and assignments of documents of title, insurance policies and sale contracts in relation to commercial goods created or made in the ordinary course of business to secure the purchase price of such goods; or


		
	(m)
	any Encumbrance created in favour of the Finance Parties; or


		
	(n)
	any Encumbrance granted pursuant to margin, collateral or similar arrangements put in place in connection with derivative transactions entered into in the ordinary course of business; or


		
	(o)
	any Encumbrance securing Financial Indebtedness of any person which is not a Subsidiary which is included as consolidated indebtedness pursuant to IFRS 11 (an IFRS 11 Person) provided that such Encumbrance is created over assets of that IFRS 11 Person (or any of its Subsidiaries) or over the ownership interests in that IFRS 11 Person; or


		
	(p)
	any Encumbrance given, in the ordinary course of the Group’s banking arrangements, under the general business conditions or bank account terms of banks; or


		
	(q)
	any Encumbrance created by an Obligor or any member of the Industrial Group and not otherwise permitted by paragraphs (a) to (p) above inclusive, provided that the aggregate principal amount of Financial Indebtedness secured by such Encumbrances, when taken together with (but without double counting) the aggregate principal amount of Financial Indebtedness outstanding pursuant to paragraph (r) of the definition of Permitted Subsidiary Indebtedness, shall not at any time exceed €500,000,000 or its equivalent in other currencies.


Permitted Subsidiary Indebtedness means:
		
	(a)
	Financial Indebtedness created with the prior written consent of the Majority Banks; or


		
	(b)
	Financial Indebtedness under the Financing Documents; or


		
	(c)
	Financial Indebtedness owed to another member of the Industrial Group; or


		
	(d)
	Financial Indebtedness owed by a Guarantor (excluding Ferrari Italy until such time as there is no Available Facility under the Term Facilities and no Term Advances are outstanding); or


		
	(e)
	Financial Indebtedness of any Subsidiary which operates only as a Treasury Vehicle for the Group, to the extent that the proceeds of such Financial Indebtedness are on-lent to a Guarantor; or


		
	(f)
	Non-recourse Securitisation Debt permitted to be secured under paragraph (j) of the definition of Permitted Encumbrance or Financial Indebtedness in relation to receivables permitted to be disposed of pursuant to paragraph (i)(iii) of the definition of Permitted Disposal; or



19








		
	(g)
	Financial Indebtedness under cash pooling arrangements in the Group's ordinary banking arrangements, to the extent matched by cash balances held by members of the Group which are treated as available for netting against that Financial Indebtedness; or


		
	(h)
	Financial Indebtedness owing to FCA or any of its Affiliates during the period from and including the Signing Date to and excluding 7 April 2016; or


		
	(i)
	Financial Indebtedness of a Subsidiary which becomes a member of the Group after the Signing Date to the extent that such Financial Indebtedness is outstanding at the time that Subsidiary becomes a member of the Industrial Group and was not created in contemplation of that Subsidiary becoming a member of the Industrial Group (and any refinancing of any such Financial Indebtedness up to the aggregate principal amount outstanding at the time such Subsidiary became a member of the Industrial Group); or


		
	(j)
	Financial Indebtedness owing to third party financial institutions (banks and/or factors), Financial Services Subsidiaries and Financial Services JVs, in each case due to latest days collections on factored receivables to the extent that such Financial Indebtedness is matched by cash receipts held by Industrial Subsidiaries; or


		
	(k)
	Financial Indebtedness arising under any IFRIC 4 arrangement; or


		
	(l)
	Financial Indebtedness arising under third party guarantees and intersegment guarantees, in a total aggregate amount not exceeding €250,000,000 or its equivalent in other currencies; or


		
	(m)
	Financial Indebtedness of any Industrial Subsidiary incorporated in a Non-OECD Country provided that the aggregate principal amount of all such Financial Indebtedness (but excluding any such Financial Indebtedness that was incurred or committed prior to the Signing Date and any refinancing of that Financial Indebtedness) permitted pursuant to this paragraph (m) does not at any time exceed an amount equal to the higher of (i) five per cent. of the total consolidated assets of the Group; and (ii) €250,000,000 or its equivalent in other currencies; or


		
	(n)
	Financial Indebtedness provided by a bank or governmental (central or local), intergovernmental, multilateral or supranational bank, body, agency, department or other authority under a Subsidised Loan Scheme; or


		
	(o)
	any Financial Indebtedness of any person which is not a Subsidiary which is included as Consolidated Total Net Debt pursuant to IFRS 11; or


		
	(p)
	any Financial Indebtedness arising under finance leases, hire purchase, conditional sale agreements or other agreements for the acquisition of assets on deferred payment terms, to the extent that the aggregate principal amount outstanding of all such Financial Indebtedness does not at any time exceed €100,000,000 or its equivalent in other currencies; or


		
	(q)
	any Financial Indebtedness arising or incurred in connection with derivative transactions entered into in the ordinary course of business and any margin, collateral or similar arrangements put in place in connection with any such transactions; or


		
	(r)
	any other Financial Indebtedness, provided that the aggregate principal amount of any such Financial Indebtedness, when taken together with (but without double counting) the aggregate principal amount of Financial Indebtedness secured by Encumbrances created pursuant to paragraph (q) of the definition of Permitted Encumbrance, does not at any time exceed €500,000,000 or its equivalent in other currencies.


Potential Default means an event which with the giving of notice or the lapse of time or the making of any determination or fulfilment of any procedural condition, in each case as provided for in Clause 16 (Default) would be a Default.

20








Professional Lender means any person who does not form part of the public within the meaning of Capital Requirements Regulation (EU) No. 575/2013.
Rate Fixing Day means, in relation to any Interest Period, the day on which quotes are customarily given in the relevant interbank market for deposits in the relevant currency for delivery on the first day of that Interest Period.
RCF Borrower means an Original Borrower or an Additional RCF Borrower, provided that it has not been released from its rights and obligations under this Agreement in accordance with Clause 13.3 (Resignation of an Obligor).
Reallocation Notice has the meaning given to it in Clause 2.3 (Facility A / Facility B Commitment Reallocation).
Reference Banks means the Euro Reference Banks or the LIBOR Reference Banks (as applicable).
Reference Bank Quotation means any quotation supplied to the Facility Agent by a Reference Bank.
Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks: 
		
	(a)
	in relation to LIBOR, as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period for an amount comparable to the Advance or overdue amount; or


		
	(b)
	in relation to EURIBOR, as the rate at which the relevant Reference Bank could borrow funds in Euro for an amount comparable to the Advance or overdue amount within the Participating Member States for the relevant period.


Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an affiliate of the investment manager or investment adviser of the first fund.
Repayment Instalment means each scheduled instalment specified under Clause 8.2 (Repayment of Facility B Advances) for repayment of the Facility B Advances.
Related Lender means, in relation to a Designated Entity, the Bank which has designated that Designated Entity for the purpose of participating in Advances to a Borrower in a particular jurisdiction.
Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
Reservations means the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the limitation on enforcement as a result of laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws affecting the rights of creditors generally, the time-barring of claims under the Limitation Acts, rules against penalties and similar principles of law in other jurisdictions relevant in the context of the Financing Documents including rules concerning limits on interest and fees and any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinions supplied to the Facility Agent as conditions precedent under this Agreement.
Resignation Notice means a notice substantially in the form set out in Schedule 8 (Form of Resignation Notice).
Revolving Facility means the Euro denominated multicurrency revolving loan facility granted to the RCF Borrowers under this Agreement described in Clause 2.1(a)(iii) (The Facilities).

21








Revolving Facility Advance means an advance made or to be made under the Revolving Facility or the principal amount outstanding for the time being of that advance.
Revolving Facility Commitment means:
		
	(a)
	in relation to an Original Bank, the amount set opposite its name under the heading Revolving Facility Commitment in Schedule 1 (Commitments) and the amount of any other Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Defaulting Bank/Illegality Increase); and


		
	(b)
	in relation to any other Bank, the amount of any Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Defaulting Bank/Illegality Increase).


Rollover Advance means one or more Revolving Facility Advances:
		
	(a)
	made or to be made on the same day that a maturing Revolving Facility Advance is due to be repaid; 


		
	(b)
	the aggregate amount of which is equal to or less than the amount of the maturing Revolving Facility Advance;


		
	(c)
	in the same currency as the maturing Revolving Facility Advance (unless it arose as a result of the operation of Clause 6.4 (No Alternative Currency)); and


		
	(d)
	made or to be made to the same RCF Borrower for the purpose of refinancing the maturing Revolving Facility Advance.


Sanctions means economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: 
		
	(a)
	the Office of Foreign Assets Control of the US Department of Treasury (OFAC); 


		
	(b)
	the United States of America Department of State; 


		
	(c)
	the United Nations Security Council; 


		
	(d)
	the European Union; or 


		
	(e)
	Her Majesty’s Treasury,


((a) to (e) together, the Sanctions Authorities).
Screen Rate means:
		
	(a)
	in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and


		
	(b)
	in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),


and if such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate after consultation with the Company.

22








Second Demerger has the meaning given to that term on page 136 in the section “The Restructuring and Separation Transactions” of Ferrari Holdco’s F-1.
Securitisation Entity means any special purpose vehicle created for the sole purpose of carrying out, or otherwise used for the purpose of carrying out, a Non-recourse Securitisation or any other member of the Industrial Group which is effecting Non-recourse Securitisations.
Selection Notice means a notice substantially in the form set out in Schedule 5 (Form of Selection Notice).
Separation Date means the day following the first day on which each of the following has occurred: 
		
	(j)
	the notarial deed effecting the First Demerger has been executed; 


		
	(k)
	the notarial deed effecting the Second Demerger has been executed; and 


		
	(l)
	the notarial deed effecting the Merger has been executed.


Signing Date means the date of signing this Agreement.
Standard Securitisation Undertakings means representations, warranties, covenants and indemnities entered into by any member of the Group from time to time which are customary in relation to Non-recourse Securitisations, including any performance undertakings with respect to servicing obligations or undertakings with respect to breaches of representations or warranties.
Subsidiary means an entity of which a person has direct or indirect control or owns directly or indirectly more than 50 per cent. of the voting capital or similar right of ownership but, in each case, excluding any Marketing Investment Dealership and control for this purpose means the power to appoint a majority of the board of directors or other management board of the entity whether through the ownership of voting capital, by contract or otherwise.
Subsidised Loan Scheme means a loan scheme or subsidised or incentivised finance scheme or transaction operated by (or on behalf of), or guaranteed or insured by, Banco Nacional de Desenvolvimento Economico e Social, Finame, Banco de Minas Gerais, a member country of the OECD, Argentina, Brazil, China, India, Russia, Republic of Serbia, South Africa or any governmental (central or local), intergovernmental, multilateral or supranational bank, body, agency, department or other authority (including but not limited to the European Investment Bank, the European Bank for Reconstruction and Development, the International Finance Corporation or any Export Credit Agency).
TARGET Day means any day on which TARGET2 is open for the settlement of payments in Euro. 
TARGET2 means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
Taxes includes all present and future taxes, charges, imposts, duties, levies, registration taxes or withholdings of any kind whatsoever, or any amount 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); and Tax and Taxation shall be construed accordingly.
Term Advance means a Facility A Advance or a Facility B Advance.
Term Facility means Facility A or Facility B.
Termination Date means:
		
	(a)
	in relation to Facility A, subject to the exercise of the Facility A Extension Option, the Original Facility A Termination Date;


		
	(b)
	in relation to Facility B, the date falling 60 months from the Signing Date; and



23








		
	(c)
	in relation to the Revolving Facility, the date falling 60 months from the Signing Date.


Total Commitments means the aggregate of the Total Facility A Commitments, Total Facility B Commitments and Total Revolving Facility Commitments, being €2,500,000,000 as at the Signing Date.
Total Facility A Commitments means the aggregate of the Facility A Commitments, being €450,000,000 as at the Signing Date.
Total Facility B Commitments means the aggregate of the Facility B Commitments, being €1,550,000,000 as at the Signing Date.
Total Revolving Facility Commitments means the aggregate of the Revolving Facility Commitments, being €500,000,000 as at the Signing Date.
Transfer Certificate means a document substantially in the form set out in Schedule 6 (Form of Transfer Certificate).
Transfer Date means, in relation to an assignment or a transfer, the later of:
		
	(a)
	the proposed Transfer Date specified in the relevant assignment agreement or Transfer Certificate; and


		
	(b)
	the date on which the Facility Agent executes the relevant assignment agreement or Transfer Certificate.


Treasury Vehicle means any Subsidiary of the Company the primary purpose of which is borrowing funds, issuing securities or incurring Financial Indebtedness. 
For the avoidance of doubt, Treasury Vehicle does not, and shall not be deemed to, include any Financial Services Subsidiary.
UK means the United Kingdom.
US or U.S. means the United States of America. 
Upfront Fees Letter means the upfront fee letter dated on or about the Signing Date between, among others, the Arrangers and the Original Company relating to, amongst other things, certain fees payable to the Arrangers by the Original Company in relation to this Agreement.
U.S. Debtor means an Obligor (that has not resigned as an Obligor in accordance with Clause 13 (Additional Obligors)) that is incorporated under the laws of the United States of America or any state of the United States of America (including the District of Colombia) or that has a place of business or property in the United States of America.
US GAAP means generally accepted accounting principles in the United States of America as in effect from time to time.
US Tax Obligor means: 
		
	(a)
	a Borrower which is resident for tax purposes in the US; or


		
	(b)
	an Obligor some or all of whose payments under the Financing Documents are from sources within the US for US federal income tax purposes. 


VAT means:
		
	(a)
	any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and



24








		
	(b)
	any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.


		
	1.2
	Headings


The headings in this Agreement are for convenience only and shall be ignored in construing this Agreement.
		
	1.3
	Interpretation


In this Agreement (unless otherwise provided):
		
	(a)
	words importing the singular shall include the plural and vice versa;


		
	(b)
	references to Clauses and Schedules are to be construed as references to the clauses of, and schedules to, this Agreement;


		
	(c)
	references to any Financing Document or any other document shall be construed as references to that Financing Document or that other document as amended, varied, novated or supplemented;


		
	(d)
	references to any statute or statutory provision include any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same, and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute;


		
	(e)
	references to a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law, being a type with which any person to which it applies is accustomed to comply) of any governmental, intergovernmental or supernatural body, agency, department or any regulatory, self-regulatory or other authority or organisation;


		
	(f)
	references to a document being in the agreed form means a document the form and content of which has been approved by the Facility Agent and which has endorsed on it the words "in the agreed form" and which is initialled by or on behalf of the Facility Agent and the Company or the Obligors' Agent or the form of which is otherwise expressly agreed by the Facility Agent and the Obligors’ Agent to be in the agreed form;


		
	(g)
	references to affiliate shall mean, in relation to any person, a Subsidiary of that person or a holding company of that person or any Subsidiary of that holding company;


		
	(h)
	references to assets shall include revenues and property and the right to revenues and property and rights of every kind, present, future and contingent and whether tangible or intangible (including uncalled share capital);


		
	(i)
	disposal means a sale, transfer, grant, lease or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;


		
	(j)
	the determination of the extent to which a rate is for a period equal in length to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement


		
	(k)
	references to a holding company of any other person shall mean a person in respect of which that other person is a Subsidiary;


		
	(l)
	the words including and in particular shall be construed as being by way of illustration or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding words;



25








		
	(m)
	references to incorporate, incorporated or its derivative forms includes, where applicable, organise, organised and its derivative forms, and references to jurisdiction of incorporation includes, where applicable, jurisdiction of organisation;


		
	(n)
	references to member of the Group and member of the Industrial Group shall be construed as references to the Company or a Subsidiary of the Company or, as the case may be, an Industrial Subsidiary;


		
	(o)
	the words other and otherwise shall not be construed ejusdem generis with any foregoing words where a wider construction is possible;


		
	(p)
	references to outstanding shall mean, in relation to a Potential Default or a Default, a Potential Default or a Default which has not been remedied or waived;


		
	(q)
	references to a Party or a person shall be construed so as to include that Party or person's assigns, transferees or successors in title and shall be construed as including references to an individual, firm, partnership, joint venture, company, corporation, body corporate, unincorporated body of persons or any state or any agency of a state;


		
	(r)
	references to a document being publicly available means that a document to be provided by an Obligor hereunder has been published on the official website of such Obligor;


		
	(s)
	references to Société Générale Corporate & Investment Banking mean Société Générale Corporate & Investment Banking, the corporate and investment banking division of Société Générale, a French société anonyme, whose registered office is located at 29, boulevard Haussmann, 75009 Paris, France and registered with the registre du commerce et des sociétés of Paris under number 552 120 222 RCS Paris;


		
	(t)
	where the Majority Banks are required to act reasonably, that shall mean that each Bank is required to act reasonably;


		
	(u)
	references to time are, unless a contrary intention is expressed, to London time; and


		
	(v)
	when applying baskets, thresholds and similar thresholds to representations, covenants and events of default, in respect of any specified currency, the equivalent amount in any other currency shall be calculated as at the date of the relevant member of the Group incurring, committing to or making the relevant Financial Indebtedness, acquisition, disposal or other action.  No Default, Potential Default, breach or misrepresentation shall occur merely as a result of a subsequent change in exchange rates.


		
	1.4
	Third Party Rights


A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
		
	1.5
	Currencies


In this Agreement:
Dollars, USD, US$ and $ means the lawful currency for the time being of the US.
Euro, EUR and € means the single currency of Participating Member States.
GBP, £ and sterling means the lawful currency of the UK.
		
	1.6
	Italian terms


In this Agreement, where it relates to an Italian Obligor, a reference to:

26








		
	(a)
	a winding‐up, bankruptcy, insolvency, administration, dissolution or the like includes, without limitation, any scioglimento, liquidazione, procedura concorsuale (fallimento, concordato preventivo, liquidazione coatta amministrativa, amministrazione straordinaria or misure urgenti per la ristrutturazione industriale delle grandi imprese in stato di insolvenza), cessione dei beni ai creditori pursuant to article 1977 of the Italian Civil Code implementing a a piano di risanamento, entering into an accordo di ristrutturazione dei debiti pursuant to article 182-bis of the Italian Insolvency Act, an accordo di ristrutturazione con intermediari finanziari or a convenzione di moratoria pursuant to article 182-septies of the Italian Insolvency Act, filing a petition for a concordato preventivo or entering into a similar arrangement for a substantial part of its creditors; and


		
	(b)
	a receiver, administrative receiver, administrator or the like includes, without limitation, a curatore, commissario giudiziale, commissario straordinario, commissario liquidatore, liquidatore, or any other person performing the same function of each of the foregoing.


		
	1.7
	Dutch terms


In this Agreement, where it relates to a Dutch Obligor, a reference to:
		
	(a)
	an administrator includes a bewindvoerder;


		
	(b)
	an attachment includes a beslag;


		
	(c)
	an encumbrance includes any mortgage (hypotheek), pledge (pandrecht) and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijk zekerheidsrecht);


		
	(d)
	gross negligence means grove schuld;


		
	(e)
	a merger means a juridische fusie;


		
	(f)
	negligence means schuld;


		
	(g)
	a receiver or an administrative receiver does not include a curator or bewindvoerder;


		
	(h)
	any step or procedure taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Section 36(2) of the Tax Collection Act of the Netherlands (Invorderingswet 1990); 


		
	(i)
	a trustee in bankruptcy includes a curator; 


		
	(j)
	wilful misconduct means opzet; and


		
	(k)
	a winding-up, administration or dissolution (and any of those terms) includes a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden).


		
	1.8
	German terms


In this Agreement, where it relates to a German Obligor, a reference to:
		
	(a)
	an administrator, administrative receiver or a provisional administrator or an interim administrator includes a reference to an Insolvenzverwalter or a vorläufiger Insolvenzverwalter;


		
	(b)
	a person being "insolvent" includes that person being unable to pay its debt (Zahlungsunfähigkeit) pursuant to § 17 of the German Insolvency Code (Insolvenzordnung) or being over-indebted (überschuldet) pursuant to § 19 of the German Insolvency Code (Insolvenzordnung);


		
	(c)
	a director or managing director of a person includes a reference to a Geschäftsführer or Vorstandsmitglied (as applicable) of such person where such company or person is incorporated in, or organised under the laws of, Germany;



27








		
	(d)
	filing for insolvency or to file for insolvency includes the meaning of Antrag auf Eröffnung eines Insolvenzverfahrens; and


		
	(e)
	initiation of insolvency proceedings includes the meaning Eröffnung eines Insolvenzverfahrens.


		
	1.9
	Restricted Bank / Restricted Obligor


		
	(a)
	The representations and undertakings under Clauses 14.1(l) (Sanctions) and Clause 15.4(d) (Sanctions) (together the Sanctions Provisions) apply to any Obligor only if and to the extent the making of any such representations or compliance with any such undertakings does not result in a violation of, conflict with, or liability under the Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung - AWV) in connection with section 4 paragraph 1 German Foreign Trade Law (Außenwirtschaftsgesetz - AWG) and/or any other applicable anti-boycott laws or regulations (together the Anti Boycott Regulations).


		
	(b)
	In relation to each Bank that notifies the Facility Agent to this effect (each a Restricted Bank), the Sanctions Provisions shall only apply for the benefit of that Restricted Bank to the extent that it would not result in any violation of, conflict with or liability under any Anti Boycott Regulations.


		
	(c)
	The Facility Agent will only treat a Bank as a Restricted Bank if (and only if) it has received notice from that Restricted Bank under this Clause. The Facility Agent will notify the Company of any notice received from a Bank under this Clause. 


		
	(d)
	In connection with any amendment, waiver, determination or direction relating to any part of a Sanctions Provision of which a Restricted Bank does not have the benefit pursuant to paragraph (b) above, the Commitments of that Restricted Bank will be excluded for the purpose of determining whether the consent of the Majority Banks has been obtained or whether the determination or direction by the Majority Banks has been made.


		
	2.
	THE FACILITIES


		
	2.1
	The Facilities


		
	(a)
	Subject to the terms of this Agreement, the Banks agree to make available:


		
	(i)
	to Ferrari Holdco, a Euro bridge term loan facility in the maximum principal amount of the Total Facility A Commitments;


		
	(ii)
	to the Original Borrowers, a Euro denominated term loan facility available in Euro and USD in the maximum principal amount of the Total Facility B Commitments; and


		
	(iii)
	to the RCF Borrowers, a Euro denominated multicurrency revolving loan facility available in Euro or any Alternative Currency in the maximum principal amount of the Total Revolving Facility Commitments.


		
	(b)
	Notwithstanding any other term of this Agreement, no Bank shall be obliged to lend more than its Commitment and the Original Euro Amount of all Advances under a Facility shall not, at any time, exceed the aggregate of the Commitments under that Facility.


		
	2.2
	Defaulting Bank/Illegality Increase


		
	(a)
	The Company may by giving prior notice to the Facility Agent by no later than the date falling ten Business Days after the effective date of a cancellation of:


		
	(i)
	the Available Commitments of a Defaulting Bank in accordance with Clause 9.3 (Right of cancellation in relation to a Defaulting Bank); or


		
	(ii)
	the Commitments of a Bank in accordance with Clause 10.1 (Illegality),



28








request that the Commitments under the relevant affected Facilities be increased (and the Total Commitments under those Facilities shall be so increased) in an aggregate amount in Euros of up to the amount of the Available Commitments or Commitments under the relevant Facilities so cancelled as follows:
		
	(A)
	the increased Commitments will be assumed by one or more Banks or other banks, financial institutions, trusts, funds or other entities (each an Increase Bank) selected by the Company (each of which shall not be a member of the Group or an affiliate of a member of the Group and which is further acceptable to the Facility Agent (acting reasonably)) and each of which confirms its willingness to assume and does assume all the obligations of a Bank corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Bank;


		
	(B)
	each of the Obligors and each Increase Bank shall assume obligations towards one another and/or acquire rights against one another as the Obligors and each Increase Bank would have assumed and/or acquired had that Increase Bank been an Original Bank;


		
	(C)
	each Increase Bank shall become a Party as a Bank and each Increase Bank and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Bank and those Finance Parties would have assumed and/or acquired had that Increase Bank been an Original Bank;


		
	(D)
	the Commitments of the other Banks shall continue in full force and effect; and


		
	(E)
	any increase in the Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.


		
	(b)
	An increase in the Commitments will only be effective on:


		
	(i)
	the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Bank;


		
	(ii)
	in relation to an Increase Bank which is not a Bank immediately prior to the relevant increase, the performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Bank, the completion of which the Facility Agent shall promptly notify to the Company and the Increase Bank.


		
	(c)
	Each Increase Bank, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Bank or Banks in accordance with this Agreement on or prior to the date on which the increase becomes effective.


		
	(d)
	Unless the Facility Agent otherwise agrees or the increased Commitment is assumed by an existing Bank, the Company shall, on the date upon which the increase takes effect, pay to the Facility Agent (for its own account) a fee of €5,000 and the Company shall promptly on demand pay the Facility Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.


		
	2.3
	Facility A / Facility B Commitment Reallocation


		
	(a)
	Subject to paragraph (f) below, at any time during the period beginning on (and including) the Signing Date and ending on (and including) 10 December 2015, the Company may agree with a Bank (the Reallocating Bank) to reduce that Reallocating Bank’s Facility B Commitment by €50 million while simultaneously increasing that Reallocating Bank’s Facility A Commitment by €50 million (any such reduction and simultaneous increase, a Commitment Reallocation).


		
	(b)
	If the Company agrees a Commitment Reallocation with a Reallocating Bank, the Company shall give written notice to the Facility Agent substantially in the form of Schedule 14 (Reallocation Notice) (a Reallocation Notice).



29








		
	(c)
	Upon the Facility Agent’s receipt of the Reallocation Notice, the Facility A Commitment and the Facility B Commitment of the Reallocating Bank shall each be as specified in the Reallocation Notice.


		
	(d)
	The Facility Agent shall notify the other Banks of the new Total Facility A Commitments and Total Facility B Commitments promptly after receiving a Reallocation Notice.


		
	(e)
	Each Bank hereby consents to any reallocation, reduction or increase of a Reallocating Bank’s Facility A Commitment or Facility B Commitment effected pursuant to this Clause 2.3.


		
	(f)
	No Commitment Reallocation may occur unless, after giving effect to the Commitment Reallocation, each Bank's Commitment in a Facility is equal to the Commitment of each other Bank in that Facility (with a Bank's Commitment in a Facility for these purposes including the Commitment of that Bank's Affiliates in that Facility). 


		
	2.4
	Obligations Several


		
	(a)
	The obligations of the Finance Parties under this Agreement are several.


		
	(b)
	The failure of a Finance Party to carry out its obligations under this Agreement shall not relieve any other Party of any of its obligations under this Agreement.


		
	(c)
	None of the Finance Parties shall be responsible for the obligations of any other Party under this Agreement.


		
	2.5
	Rights Several


		
	(a)
	The rights of the Finance Parties under this Agreement are several.  All amounts due, and obligations owed, to each of them are separate and independent debts or, as the case may be, obligations.


		
	(b)
	Each Finance Party may, except as otherwise stated in this Agreement, separately enforce its rights under this Agreement.


		
	2.6
	Lending Offices


		
	(a)
	Subject as provided in paragraph (c) below, each Bank will participate in each Advance through its Lending Office.  If any Bank changes its Lending Office for the purpose of this Agreement: 


		
	(i)
	that Bank will notify the Facility Agent and the Obligors' Agent promptly of such change and, until it does so, the Facility Agent and the Obligors' Agent will be entitled to assume that no such change has taken place; and


		
	(ii)
	any change of Lending Office by that Bank to a Designated Entity will only be effective upon performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such change of Lending Office to that Designated Entity, the completion of which the Facility Agent shall promptly notify to that Bank and the Obligors’ Agent.


		
	(b)
	Any Bank may nominate a different Lending Office for the purposes of making a particular Advance or particular type of Advance to any Borrower, in which event such Lending Office shall for the purposes of this Agreement be its Lending Office for that Advance or that type of Advance but not otherwise.


		
	(c)
	If any Bank changes its Lending Office or nominates a different Lending Office for the purpose of the Facilities and that change or nomination would (but for this paragraph (c) and as a result of laws or regulations in force or known to be coming into force at that time) result on the occasion of any subsequent payment to that Bank in any amounts being required to be paid by any Obligor under Clause 10.2 (Increased Costs) or 11.10 (Grossing-up), the provisions of Clause 23.5(h) (Conditions to Assignments and Transfers) shall apply.



30








		
	2.7
	Designated Entities


		
	(a)
	A Bank may designate an affiliate (a Designated Entity) as its Lending Office for the purpose of participating in Advances to a Borrower in a particular jurisdiction.


		
	(b)
	An affiliate of a Bank may be designated for the purposes of paragraph (a) above by:


		
	(i)
	appearing in the list of Designated Entities in Schedule 11 (List of Designated Entities) of this Agreement and signing this Agreement as a Designated Entity; or


		
	(ii)
	acceding as a Designated Entity by signing an accession agreement substantially in the form of Schedule 12 (Form of Designated Entity Accession Agreement), provided that such accession by an affiliate of a Bank will only be effective upon performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such accession as a Designated Entity, the completion of which the Facility Agent shall promptly notify to that Bank and the Company.


		
	(c)
	A Designated Entity does not have any Commitment and does not have any obligations under this Agreement prior to such Designated Entity participating in an Advance.


		
	(d)
	When a Designated Entity participates in an Advance:


		
	(i)
	subject to paragraph (e) below, it shall be entitled to all the rights of a Bank and have the corresponding obligations of a Bank, in each case under the Financing Documents relating to its Participation in any such Advances; and


		
	(ii)
	the other parties to the Financing Documents shall treat the Designated Entity as a Bank for these purposes.


The Designated Entity is a party to this Agreement for these purposes.
		
	(e)
	For the purposes only of voting in connection with any Financing Document, the Participation of a Designated Entity in any outstanding Advances shall be deemed to be a Participation of the Related Lender.


		
	(f)
	A Related Lender will:


		
	(i)
	so long as the relevant Designated Entity is able to do so, procure that, subject to the terms of this Agreement, that Designated Entity participates in Advances to the Borrower(s) in the relevant jurisdiction designated in accordance with this Clause 2.7; and


		
	(ii)
	subject to the terms of this Agreement, remain liable to participate in any Advance in the event that the Designated Entity is unable or fails to do so.


		
	(g)
	A Bank may revoke its designation of an affiliate as a Designated Entity by notice in writing to the Facility Agent and the Company, provided that such notice may only take effect:


		
	(i)
	if there are no Participations owing to the Designated Entity on the date of the notice, on the date falling three Business Days after the date of such notice;


		
	(ii)
	in all other cases, on the last day of the then current Interest Period applicable to any Participation owing to that Designated Entity provided that if the notice has been delivered less than three Business Days before the last day of that Interest Period, such notice may only take effect on the later of the third Business Day after the date of that notice and the last day of the next Interest Period (if any) applicable to any Participation owing to that Designated Entity.


		
	(h)
	Upon such Designated Entity ceasing to be a Designated Entity, the Related Lender will automatically assume (and be deemed to assume without further action by any Party) all rights and obligations previously vested in the Designated Entity.



31








		
	(i)
	Any notice or communication to be made to a Designated Entity shall be served directly on the Designated Entity at the address supplied to the Facility Agent by the Related Lender where the Related Lender or Designated Entity reasonably requests or, if no such request has been made, shall be delivered to the Related Lender in accordance with this Agreement.


		
	(j)
	A Designated Entity may assign or transfer any of its rights and obligations under this Agreement in respect of its Participation in any Advance (and the Related Lender may assign or transfer any corresponding Commitment) in accordance with Clause 23 (Assignments and Transfers).


		
	2.8
	Obligors’ Agent


		
	(a)
	Each Obligor (other than Ferrari Holdco) by its execution of this Agreement or an Accession Memorandum irrevocably appoints Ferrari Holdco to act on its behalf as its agent in relation to the Financing Documents and irrevocably authorises:


		
	(i)
	Ferrari Holdco on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including Selection Notices) to execute on its behalf any Accession Memorandum or an Increase Confirmation, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect that Obligor, without further reference to or the consent of that Obligor; and


		
	(ii)
	each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Financing Documents to Ferrari Holdco,


and exempts, to the extent legally possible, Ferrari Holdco from the restrictions on multi-representation (Mehrfachvertretung) and self-dealing (Insichgeschäft) stipulated in section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and any equivalent restriction under any other applicable law in this respect.
		
	(b)
	Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Financing Document on behalf of another Obligor or in connection with any Financing Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Financing Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' Agent and any other Obligor, those of the Obligors' Agent shall prevail.


		
	3.
	PURPOSE


		
	3.1
	Purpose


		
	(a)
	The Original Borrowers shall use the proceeds of all Term Advances for the refinancing of the FCA Note, to repay certain other amounts due to FCA, to repay other indebtedness of the Group and for general corporate purposes.


		
	(b)
	The RCF Borrowers shall use the proceeds of all Revolving Facility Advances for general corporate and working capital purposes of the Group.


		
	3.2
	No Monitoring


None of the Finance Parties shall be obliged to investigate or monitor the use or application of the proceeds of the Advances.
		
	4.
	CONDITIONS PRECEDENT


		
	(a)
	Notwithstanding any other term of this Agreement, none of the Finance Parties shall be under any obligation to make any Advance available to any Borrower unless the Facility Agent has notified the Obligors' Agent and the Banks that it has received all the documents listed in Part 1 of Schedule 2 (Conditions Precedent) in form 



32








and content reasonably satisfactory to the Facility Agent.  The Facility Agent shall promptly notify the Obligors’ Agent and the Banks when it is so satisfied.  Subject to the foregoing and the other terms of the Financing Documents, the First Drawdown Date can occur at any time after the Signing Date.
		
	(b)
	If the First Drawdown Date occurs on or after 29 February 2016 (but not before 29 February 2016), none of the Finance Parties shall be under any obligation to make any Advance available to any Borrower unless the Facility Agent has notified the Obligors' Agent and the Banks that it has received all the documents listed in Schedule 3 (Conditions Subsequent) in form and content reasonably satisfactory to the Facility Agent.  The Facility Agent shall promptly notify the Obligors’ Agent and the Banks when it is so satisfied.


		
	(c)
	Other than to the extent that the Majority Banks notify the Facility Agent in writing to the contrary before the Facility Agent gives the notifications described in paragraphs (a) and (b) above (as applicable), the Banks authorise (but do not require) the Facility Agent to give that notification.  The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.


		
	5.
	DRAWDOWN


		
	5.1
	Drawdown Period


Subject to the terms of this Agreement, an Advance under a Facility shall be made to a Borrower under that Facility at any time during the Drawdown Period applicable to that Facility when requested by means of a Drawdown Notice in accordance with this Clause 5.  At the close of business on the last day of the Drawdown Period applicable to that Facility the undrawn amount of each Bank's Commitment under that Facility shall be automatically cancelled.
		
	5.2
	Conditions to each Advance


The obligation of each Bank to make available its Participation in an Advance is subject to the conditions that on the date on which the relevant Drawdown Notice is given and on the Drawdown Date:
		
	(a)
	the representations and warranties in paragraphs (a) to (d) (inclusive), (k), (l)(i), (m)(i) and (n)(i) of Clause 14.1 (Representations and Warranties) (taking into account the limitations in Clause 14.2(b) (Repetition)) are correct in all material respects; and


		
	(b)
	in the case of an Advance, no Default or Potential Default has occurred and is outstanding or would occur on the making of the Advance or, in the case of a Rollover Advance, no notice has been given under Clause 16.2 (Acceleration).


		
	5.3
	Drawdown Notice


		
	(a)
	Whenever a Borrower wishes an Advance to be made, it shall give a duly completed Drawdown Notice to the Facility Agent to be received not later than 10.00 a.m. on the third Business Day before the Drawdown Date.


		
	(b)
	A Drawdown Notice for an Advance may only be given on a London Business Day which is also a day on which banks are generally open for business in Milan.


		
	(c)
	A Borrower must identify the Facility to be utilised in a Drawdown Notice and must be: 


		
	(i)
	in relation to Facility A, the Company;


		
	(ii)
	in relation to Facility B, an Original Borrower; and 


		
	(iii)
	in relation to the Revolving Facility only, an RCF Borrower.  


		
	(d)
	A Borrower must select the currency of an Advance in a Drawdown Notice. If the Borrower does not select a currency, the Advance shall be made in Euro.  


		
	(e)
	An Advance under:


		
	(i)
	Facility A may only be denominated in Euro;



33








		
	(ii)
	Facility B may only be denominated in Euro or USD; and


		
	(iii)
	the Revolving Facility may only be denominated in Euro, in a Committed Currency or, subject to Clause 6 (Alternative Currencies - Revolving Facility), another Alternative Currency.


		
	(f)
	Each Advance will remain outstanding in the currency in which it is borrowed until its repayment or prepayment.


		
	(g)
	A Drawdown Notice shall be irrevocable and the relevant Borrower shall be obliged to borrow in accordance with its terms.


		
	5.4
	Limitations on Advances


The following limitations apply to Advances:
		
	(a)
	the Drawdown Date of an Advance under a Facility shall be a Business Day falling before the end of the Drawdown Period applicable to that Facility;


		
	(b)
	subject to paragraph (d) below, the principal amount of an Advance to be denominated in Euros shall be a minimum of €50,000,000 or, if less, the relevant Available Facility;


		
	(c)
	subject to paragraph (d) below, the principal amount of an Advance to be denominated in an Alternative Currency shall be:


		
	(i)
	in an Original Euro Amount of at least €25,000,000 (and a round amount in that currency as the Facility Agent and the relevant Borrower may agree); or


		
	(ii)
	in an Original Euro Amount equal to the relevant Available Facility;


		
	(d)
	no Advance shall be made if the making of that Advance would result in the aggregate Original Euro Amount of all Advances under the relevant Facility exceeding the total Commitments under that Facility or result in a breach of Clause 6.2(b) (Availability);


		
	(e)
	no Facility B Advance may be made if, following the making of that Facility B Advance, the aggregate amount of Facility B Advances denominated in USD would exceed US$300,000,000;


		
	(f)
	no more than three Facility A Advances may be outstanding at any one time; 


		
	(g)
	no more than five Facility B Advances may be outstanding at any one time; 


		
	(h)
	no more than 15 Revolving Facility Advances may be outstanding at any one time; and


		
	(i)
	in the case of an Advance denominated in an Alternative Currency, no such Advance shall be made if the requirements of Clause 6 (Alternative Currencies - Revolving Facility) are not met.


		
	5.5
	Notification to Banks


The Facility Agent shall promptly notify each Bank of the details of each Drawdown Notice received by it.
		
	5.6
	Participations


		
	(a)
	Subject to the terms of this Agreement, each Bank acting through its Lending Office shall make available to the Facility Agent on the Drawdown Date for an Advance by no later than 2.30 p.m. an amount equal to its Participation in that Advance and in the currency specified in the Drawdown Notice for that Advance.


		
	(b)
	For the purposes of paragraph (a) above, the Participation of a Bank in an Advance shall be the proportion borne by that Bank's Available Commitment under the relevant Facility to the Available Facility under that Facility on the Drawdown Date of that Advance.



34








		
	5.7
	Facility A Extension Option


		
	(a)
	The Company may by notice to the Facility Agent (the Extension Notice) substantially in the form of Schedule 10 (Form of Extension Request) given not less than 10 Business Days before the Original Facility A Termination Date, extend the Termination Date applicable to Facility A for a further period of 6 months from the Original Facility A Termination Date.


		
	(b)
	The Facility Agent must promptly notify the Banks of any Extension Notice.


		
	(c)
	Following delivery of the Extension Notice and subject to payment of an extension fee under Clause 5.8 (Extension Fee), the Termination Date applicable to Facility A will be extended to the date falling 18 months after the Signing Date.


		
	(d)
	The Extension Request is irrevocable.


		
	5.8
	Extension Fee


If and only if the Termination Date applicable to Facility A has been extended pursuant to an Extension Notice, on the Original Facility A Termination Date, the Company shall pay to the Facility Agent for the account of each Bank an extension fee in an amount equal to 0.15 per cent. of the aggregate amount of that Bank’s Participations in the Facility A Advances on that date.
		
	6.
	ALTERNATIVE CURRENCIES - REVOLVING FACILITY


		
	6.1
	Requests for Alternative Currency


Subject to Clause 6.2 (Availability), an RCF Borrower may request in a Drawdown Notice that a Revolving Facility Advance be denominated in an Alternative Currency.
		
	6.2
	Availability


		
	(a)
	An RCF Borrower may request that a Revolving Facility Advance be denominated in Euros or an Alternative Currency provided that (other than in respect of a request for a Committed Currency) the Facility Agent has confirmed to that RCF Borrower that the Alternative Currency is available for drawing under the Revolving Facility and any limit on the aggregate Original Euro Amount of Revolving Facility Advances which may be outstanding at any time in that currency.


		
	(b)
	The Original Euro Amount of Revolving Facility Advances outstanding at any time in any Alternative Currency may not exceed the limit (if any) specified for that currency by the Facility Agent pursuant to paragraph (a) above.


		
	6.3
	Notification to Banks


The Facility Agent shall promptly notify each Bank of the currency and Original Euro Amount of each Revolving Facility Advance to be denominated in an Alternative Currency.
		
	6.4
	No Alternative Currency


If, no later than 5.00 p.m. on the third Business Day before the first day of an Interest Period in relation to a Revolving Facility Advance which is proposed to be denominated in an Alternative Currency (other than a Committed Currency), a Bank notifies the Facility Agent that:
		
	(a)
	the proposed Alternative Currency is not readily available to it in the amount required to fund its Participation in that Revolving Facility Advance; or


		
	(b)
	compliance with its obligation to participate in a Revolving Facility Advance in the proposed Alternative Currency would contravene a law or a regulation or guideline (having the force of law or being of a type which banks in the relevant interbank market customarily comply) applicable to it,



35








the Facility Agent shall notify the relevant RCF Borrower and the Banks by 9.00 a.m. on the second Business Day before the first day of the Interest Period relating to the Revolving Facility Advance.  In this event, the relevant RCF Borrower and the Banks may agree that the Advance shall not be made, provided that, in the absence of such agreement by 11.00 a.m. on the same day, the Revolving Facility Advance shall be made and either (at the option of the relevant RCF Borrower) (i) the Revolving Facility Advance will be denominated in its entire amount in Euros or a Committed Currency (as the relevant RCF Borrower shall, by notice served on the Facility Agent prior to such time, select) or (ii) each Bank will participate in the Revolving Facility Advance in the chosen Alternative Currency, save that each Bank that gives notice pursuant to this Clause 6.4 will participate in the Revolving Facility Advance in Euros or a Committed Currency (as the relevant RCF Borrower shall, by notice served on the Facility Agent prior to such time, select) in an amount equal to that Bank's proportion of that Revolving Facility Advance and its Participation will be treated as a separate Revolving Facility Advance denominated in Euros or, as the case may be, a Committed Currency during that Interest Period (with an Interest Period as set out in the relevant Drawdown Notice).
		
	7.
	INTEREST


		
	7.1
	Interest Rate


Interest shall accrue on each Advance from and including the relevant Drawdown Date to but excluding the date the Advance is repaid at the rate determined by the Facility Agent to be the aggregate of:
		
	(a)
	the applicable Margin; and


		
	(b)
	EURIBOR (for Euros) or LIBOR (for other currencies).


		
	7.2
	Selection of Interest Periods - Term Advances 


		
	(a)
	A Borrower must select the first Interest Period for a Term Advance to be made to it in the applicable Drawdown Notice, and may select subsequent Interest Periods in a Selection Notice.


		
	(b)
	Each Selection Notice for a Term Advance is irrevocable and must be delivered to the Facility Agent by the relevant Borrower or the Obligors’ Agent not later than 11.00a.m. one Business Day before the Rate Fixing Day for the relevant Interest Period.


		
	(c)
	If a Borrower or the Obligors’ Agent fails to deliver a Selection Notice to the Facility Agent in accordance with paragraph (b) above, the relevant Interest Period will, subject to the other provisions of this Clause 7.2, be three months.


		
	(d)
	Subject to the other provisions of this Clause, each Interest Period for a Term Advance will be one, three or six months or any other period not exceeding six months agreed by the Company or the Obligors’ Agent and the Facility Agent (acting on the instructions of the Majority Banks).


		
	(e)
	Each Interest Period for a Term Advance will start on its Drawdown Date or (if already made) on the last day of its preceding Interest Period.


		
	7.3
	Selection of Interest Periods - Revolving Facility Advances


		
	(a)
	Each Revolving Facility Advance has one Interest Period only.


		
	(b)
	A Borrower must select the Interest Period for a Revolving Facility Advance to be made to it in the applicable Drawdown Notice.


		
	(c)
	Subject to the other provisions of this Clause, the Interest Period for a Revolving Facility Advance will be one, three or six months or any other period not exceeding six months agreed by the Company or the Obligors’ Agent and the Facility Agent (acting on the instructions of the Majority Banks).


		
	(d)
	The Interest Period for a Revolving Facility Advance will start on its Drawdown Date.



36








		
	7.4
	Changes to Interest Periods


Before determining the interest rate for a Facility B Advance, the Facility Agent may with the prior consent of the Obligors’ Agent shorten an Interest Period for any Facility B Advance to end on a Facility B Repayment Date to ensure there are sufficient Facility B Advances (with an aggregate amount equal to or greater than the relevant Repayment Instalment due on that Facility B Repayment Date) which have an Interest Period ending on that Facility B Repayment Date.
		
	7.5
	Non-Business Days


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


		
	(b)
	If an Interest Period begins on the last Business Day in a calendar month or on a Business Day for which there is no numerically corresponding day in the calendar month in which that Interest Period is to end, it shall end on the last Business Day in that later calendar month.


		
	7.6
	No overrunning the Termination Date


If an Interest Period applicable to an Advance under a Facility would otherwise extend beyond the Termination Date applicable to that Facility, it shall be shortened so that it ends on the Termination Date.
		
	7.7
	Consolidation and division of Term Advances


		
	(a)
	Subject to paragraph (b) below, if two or more Interest Periods:


		
	(i)
	relate to Term Advances in the same currency under the same Facility; and


		
	(ii)
	end on the same date,


those Term Advances will, unless the relevant Borrower or Obligors’ Agent specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Facility A Advance or single Facility B Advance (as applicable) on the last day of the Interest Period.
		
	(b)
	Subject to the other provisions of this Agreement, if a Borrower or the Obligors’ Agent requests in a Selection Notice that a Term Advance under a Facility be divided into two or more Advances under that Facility, that Term Advance will, on the last day of its Interest Period, be divided as specified in that Selection Notice.


		
	(c)
	No request may be made for a Term Advance to be divided if, as a result of the proposed division, more than three Facility A Advances or five Facility B Advances would be outstanding.


		
	7.8
	Unavailability of Screen Rate


		
	(a)
	If no Screen Rate is available for EURIBOR or, if applicable, LIBOR for the Interest Period of an Advance, the applicable EURIBOR or LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Advance.


		
	(b)
	If no Screen Rate is available for EURIBOR or, if applicable, LIBOR for: 


		
	(i)
	the currency of an Advance; or


		
	(ii)
	the Interest Period of an Advance and it is not possible to calculate the Interpolated Screen Rate, 


the applicable EURIBOR or LIBOR shall be the Reference Bank Rate as of 11:00 a.m (Brussels or London Time, respectively) for the currency of that Advance and for a period equal in length to the Interest Period of that Advance, subject to Clause 10.3 (Market Disruption).

37








		
	7.9
	Calculation of Reference Bank Rate


		
	(a)
	If EURIBOR or LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by 11:00 a.m. (Brussels or London time, respectively), the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks, subject to Clause 10.3 (Market Disruption).


		
	7.10
	Margin


		
	(a)
	Subject to the other provisions of this Clause 7.10, the Margin applicable to a Facility A Advance during any period specified in the table below shall be the rate per annum set out opposite that period in the table below:




	
		
	Months from first Drawdown Date under Facility A
	Facility A Margin (per cent. per annum)

	≤ 3
	0.40

	3 < x ≤ 6
	0.55

	6 < x ≤ 9
	0.75

	9 < x ≤ 12
	0.95

	12 < x ≤ 15
	1.20

	15 < x ≤ 18
	1.45






		
	(b)
	The initial Margin applicable to a Facility B Advance is 0.90 per cent. per annum and the initial Margin applicable to a Revolving Facility Advance is 0.75 per cent. per annum. 


		
	(c)
	Subject to the other provisions of this Clause 7.10, the Margin applicable to Facility B Advances and the Revolving Facility Advances shall be determined in accordance with the table below:




	
			
	Consolidated Total Net Debt to Consolidated Adjusted EBITDA (x:1)
	Facility B Margin (per cent. per annum)
	Revolving Facility Margin (per cent. per annum)

	x < 1.0
	0.50
	0.35

	1.0 ≤ x < 1.5
	0.60
	0.45

	1.5 ≤ x < 2.0
	0.70
	0.55

	2.0 ≤ x < 2.5
	0.80
	0.65

	2.5 ≤ x < 3.0
	0.90
	0.75

	x ≥ 3.0
	1.05
	0.90




Any increase or decrease in the Margin for a Facility B Advance or Revolving Facility Advance shall take effect on the date (the “reset date”) which is the Business Day following receipt by the Facility Agent of a Margin Certificate for that Measurement Period pursuant to Clause 15.1(d) (Margin Certificate)
		
	(d)
	In this Agreement:


Consolidated EBITDA means, in respect of any Measurement Period, net profit of the Group before income tax expense, net financial income/(expenses), and Depreciation and Amortization. 
Consolidated Adjusted EBITDA means, in respect of any Measurement Period, Consolidated EBITDA, as adjusted for income and costs which are significant in nature but which are expected to occur infrequently, provided that for each acquisition or disposal by a member of the Group the cash consideration for which exceeds €500,000,000 or its equivalent in other currencies, Consolidated Adjusted EBITDA shall be adjusted by: 

38








		
	(i)
	including the EBITDA of a member of the Group or attributable to any business or asset (in each case) acquired during the Measurement Period for that part of the Measurement Period when it was not a member of the Group and/or the business or assets were not owned by a member of the Group (provided that no such adjustment will be required if the relevant information is not available or it is not possible to determine (or would, in the sole discretion of the Company, result in disproportionate cost for the Group to determine) the EBITDA attributable to the relevant part of the Measurement Period when it was not a member of the Group and/or the business or assets were not owned by a member of the Group); and 


		
	(ii)
	excluding the EBITDA attributable to any member of the Group which (after giving effect to such disposal) is no longer a member of the Group, or any business or assets disposed of by any member of the Group, during that Measurement Period,


in each case, with EBITDA calculated in accordance with the definition of Consolidated EBITDA and the accounting principles and practices used by the Company.
Consolidated Total Net Debt means, at any time as reported in the Company's most recent consolidated financial statements, the aggregate financial liabilities of the Group less cash (including before the Separation Date deposits in FCA Group cash management pools), cash equivalents and current securities of the Group.
Depreciation and Amortisation means, in respect of any Measurement Period, depreciation and amortisation of the Group. 
Measurement Period means a period of 12 months ending on the last day of a financial quarter of the Company.
		
	(e)
	For so long as a Default is outstanding, the Margin applicable to a Facility will be the highest rate applicable to that Facility as set out above.


		
	7.11
	Default Interest


		
	(a)
	If an Obligor fails to pay any amount payable under any Financing Document on the due date, it shall pay default interest on the overdue amount from the due date to the date of actual payment calculated by reference to successive Interest Periods (each of such duration as the Facility Agent may acting reasonably select and the first beginning on the relevant due date) at the rate per annum being the aggregate of (i) one per cent. per annum, (ii) the applicable Margin, and (iii) EURIBOR or, as the case may be, LIBOR.


		
	(b)
	So long as the overdue amount remains unpaid, the default interest rate shall be recalculated in accordance with the provisions of this Clause 7.11 on the last day of each such Interest Period and any unpaid interest shall, subject to Clause 7.14 (Italian law), be compounded at the end of each Interest Period.


		
	7.12
	Calculation and Payment of Interest


		
	(a)
	At the beginning of each Interest Period, the Facility Agent shall notify the Banks and the relevant Borrower of the duration of that Interest Period and the rate and amount of interest payable for the Interest Period (but in the case of any default interest calculated under Clause 7.11 (Default Interest), any such notification need not be made more frequently than weekly).  Each notification shall set out in reasonable detail the basis of computation of the amount of interest payable. The Facility Agent shall promptly notify the Borrower (or the Company) of any Funding Rate.


		
	(b)
	Interest due from the Borrowers under this Agreement shall:


		
	(i)
	accrue from day to day at the rate calculated under this Clause 7;


		
	(ii)
	except as otherwise provided in this Agreement, be paid by the relevant Borrower to the Facility Agent (for the account of the Banks) in arrear on the last day of each Interest Period relating to each Advance, provided that for any Interest Period which is for longer than six months, the relevant Borrower shall 



39








pay interest on the dates falling at six-monthly intervals after the first day of the Interest Period relating to that Advance;
		
	(iii)
	be calculated on the basis of the actual number of days elapsed and a 360 day year or, if different, such number of days as is market practice for the relevant currency; and


		
	(iv)
	be payable both before and after judgment.


		
	7.13
	Facility Agent's Determination


The determination by the Facility Agent of any interest payable under this Clause 7 shall be conclusive and binding on the relevant Borrower in the absence of manifest error.
		
	7.14
	Italian law


Notwithstanding any other provision of this Agreement:
		
	(a)
	if at any time the rate of interest (including, for the avoidance of doubt, default interest) payable by an Italian Borrower in respect of an Advance exceeds the maximum rate of interest permitted as at the Signing Date by Italian Law No. 108 of 7 March 1996 as amended, implemented or supplemented from time to time (the Italian Usury Legislation), then the rate of interest payable by that Italian Borrower in respect of the relevant Advance shall be capped, for the shortest possible period, at the maximum rate permitted under the Italian Usury Legislation; and


		
	(b)
	the amount of interest on overdue amounts payable by an Italian Obligor under this Agreement shall not be compounded unless in accordance with, and to the extent permitted under applicable law.


		
	8.
	REPAYMENT AND PREPAYMENT


		
	8.1
	Repayment of Facility A Advances


Ferrari Holdco shall repay each Facility A Advance in full on the Termination Date applicable to Facility A.    
		
	8.2
	Repayment of Facility B Advances


		
	(a)
	The Original Borrowers shall repay the Facility B Advances in instalments by repaying on:


		
	(i)
	31 December 2016;


		
	(ii)
	each 30 June and 31 December thereafter until (and including) 30 June 2020; and


		
	(iii)
	the Termination Date applicable to Facility B,


(each date in paragraphs (i), (ii) and (iii) above, a Facility B Repayment Date) amounts equal to one ninth of the aggregate amounts of Facility B Advances outstanding in Euro and Dollars (respectively) as at close of business in London on the last day of the Drawdown Period applicable to Facility B.
		
	(b)
	If, in relation to a Facility B Repayment Date, the aggregate amount of Facility B Advances outstanding in a currency exceeds the Repayment Instalment to be paid by the Original Borrowers in that currency, the Obligors’ Agent may, if it gives the Facility Agent not less than five Business Days prior written notice, select which of those Facility B Advances in that currency will be wholly or partially repaid so that the Facility B Repayment Instalment is repaid on the relevant Facility B Repayment Date in full.  


		
	(c)
	If the Obligors’ Agent fails to deliver a written notice to the Facility Agent in accordance with paragraph (b) above, the Facility Agent shall select the Facility B Advances to be wholly or partially repaid.


		
	(d)
	Without prejudice to the previous paragraphs of this Clause, the Original Borrowers shall ensure all Facility B Advances are repaid in full by no later than the Termination Date applicable to Facility B.



40








		
	8.3
	Repayment of Revolving Facility Advances


		
	(a)
	Subject to paragraph (b) below, each RCF Borrower shall repay each Revolving Facility Advance made to it in full on the last day of the Interest Period relating to that Revolving Facility Advance.


		
	(b)
	If all or part of an existing Revolving Facility Advance made to an RCF Borrower is to be repaid from the proceeds of all or part of a new Revolving Facility Advance to be made to that RCF Borrower and denominated in the same currency as that existing Advance then, as between each Bank and that RCF Borrower, the amount to be repaid by that RCF Borrower to that Bank shall be set off against the amount to be advanced by that Bank in relation to the new Revolving Facility Advance and the party to whom the smaller amount is to be paid shall pay to the other party a sum equal to the difference between the two amounts.


		
	(c)
	At any time when a Bank becomes a Defaulting Bank, the maturity date of each of the Participations of that Bank then outstanding under the Revolving Facility will be automatically extended to the Termination Date applicable to the Revolving Facility and will be treated as separate Revolving Facility Advances (each a Separate Revolving Facility Advance) denominated in the currency in which the relevant Participations are outstanding.


		
	(d)
	An RCF Borrower to whom a Separate Revolving Facility Advance is outstanding may prepay that Revolving Facility Advance by giving ten Business Days' prior notice to the Facility Agent. The Facility Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Bank concerned as soon as practicable on receipt.


		
	(e)
	Interest in respect of a Separate Revolving Facility Advance will accrue for successive Interest Periods selected by the relevant RCF Borrower by the time and date specified by the Facility Agent (acting reasonably) and will be payable by that Borrower to the Defaulting Bank on the last day of each Interest Period of that Advance.


		
	(f)
	The terms of this Agreement relating to Revolving Facility Advances generally shall continue to apply to Separate Revolving Facility Advances other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Revolving Facility Advance.


		
	8.4
	Voluntary Prepayment


		
	(a)
	The Borrower of an Advance may, by giving the Facility Agent not less than three Business Days' prior notice, prepay the whole or part of that Advance (but if in part, in a minimum Original Euro Amount of €25,000,000 rounded as the Facility Agent may, after consultation with the relevant Borrower, direct).


		
	(b)
	Any notice of prepayment shall be irrevocable, shall specify the date on which the prepayment is to be made and the amount of the prepayment, and shall, subject to the next sentence, oblige the relevant Borrower to make that prepayment. Any notice of prepayment may be made subject to conditions, and if any such conditions are not satisfied then the prepayment specified in the notice need not be made so long as (if such prepayment is not made) the Borrower indemnifies the Banks for any break costs actually incurred by reason of such prepayment not being made.  The Facility Agent shall promptly notify the Banks of receipt of any such notice.


		
	8.5
	Mandatory prepayment ‐ change of control


		
	(a)
	For the purposes of this Clause 8.5:


Change of Control means: 
		
	(i)
	the Company ceasing to be the direct or indirect beneficial owner of shares in the issued share capital of each of the other Obligors carrying the right to exercise more than 50 per cent. of the votes exercisable at a general meeting of each of the other Obligors or otherwise ceasing to exercise Control over each such other Obligor (in each case, other than an Obligor that has ceased to be an Obligor in accordance with Clause 13.3 (Resignation of an Obligor)); or 


		
	(ii)
	any person or group of persons acting in concert (other than a Related Party) gaining Control of the Company, provided that a person or group of persons acting in concert shall be deemed not to Control 



41








the Company unless such person or group of persons is the beneficial owner of both (x) more than 30 per cent. of the voting share capital of the Company; and (y) a greater percentage ownership of the voting share capital of the Company than the Related Parties (in aggregate),
provided that it will not be a Change of Control for a new holding company of the Group (New Holdco) to be established which:
		
	(A)
	is owned (directly or indirectly) by substantially the same shareholders that owned the Company immediately prior to the establishment of New Holdco (disregarding any change to such shareholders (whether by way of trading activity or issuance and sale of shares or convertible or exchangeable securities) which had such change occurred other than in connection with the establishment of New Holdco, would not have resulted in a Change of Control);


		
	(B)
	owns 100% of the share capital of the Company or is the surviving entity following a merger with the Company pursuant to which New Holdco succeeds to all the rights and assumes all the liabilities of the Company (and appropriate legal opinions from counsel in the jurisdiction of New Holdco are given confirming such succession);


		
	(C)
	simultaneously becomes a Guarantor whether through succession or accession as an Additional Guarantor; and


		
	(D)
	is incorporated and tax resident in any OECD Country or another jurisdiction approved by all the Banks,


and provided further that none of the following will constitute a Change of Control: (1) any transaction described under “Restructuring and Separation Transactions” in the Ferrari Holdco’s F-1 or any transaction arising out of or in relation to any such transaction; or (2) any transaction contemplated by the merger proposal dated 10 September 2015 in connection with the merger of the Original Company into FE Newco (to be renamed Ferrari N.V.) as published in the Dutch Trade Register.
Connected Person means, in relation to Piero Ferrari, his spouse, children, dependents, or any trust in respect of which any of such persons is a trustee or beneficiary, or any partnership, company, body corporate other person in respect of which any of such persons has control of at least 50 per cent. of the ultimate economic interest.
Control for the purposes of this Clause 8.5 means the ownership of more than 50% of the voting share capital of an entity or the power to appoint a majority of the board of directors or other most senior governing board of that entity whether through the ownership of voting capital, by contract or otherwise.
Related Party for the purposes of this Clause 8.5 means any of (i) Giovanni Agnelli & C S.a.p.a. or any of its Subsidiaries, (ii) Exor S.p.A. or any of its Subsidiaries, (iii) FCA or any of its Subsidiaries, and (iv) (to the extent acting in concert with any of the foregoing) Piero Ferrari or any of his Connected Persons.
		
	(b)
	If a Change of Control occurs:


		
	(i)
	the Company or the Obligors' Agent shall promptly notify the Facility Agent upon becoming aware of that event;


		
	(ii)
	during the period beginning on (and including) the later of the date on which the Change of Control occurs and the date on which the Facility Agent is notified of such event under sub-paragraph (b)(i) above, and ending on (but excluding) the day falling 30 days thereafter (the 30-day period), no Borrower may request or have made to it or issued on its behalf any Advances (other than Rollover Advances) unless otherwise agreed by the Majority Banks; and


		
	(iii)
	the Facility Agent (if so instructed by the Majority Banks) shall, by not less than five Business Days' notice to the Company (which notice may only be given during the 30-day period, and not otherwise), cancel the Total Commitments and declare all outstanding Advances, together with accrued interest, 



42








and all other amounts accrued under the Financing Documents immediately due and payable, whereupon the Total Commitments will be cancelled and all such outstanding amounts will become immediately due and payable.
		
	8.6
	Mandatory prepayment - capital markets issue


		
	(a)
	In this Clause 8.6: 


relevant issuance means any issue, sale or public offering of any debt securities in the debt capital markets by any member of the Group except:
		
	(i)
	in respect of any securitisation transaction entered into by a member of the Group in the ordinary course of business; or


		
	(ii)
	any issue, sale or public offering of debt securities by a Financial Services Subsidiary.


Net DCM Proceeds means an amount equal to the cash proceeds received by any member of the Group from a relevant issuance net of fees, costs, expenses and Taxes incurred or estimated in good faith by the Company to be payable by any member of the Group in relation to that relevant issuance.
		
	(b)
	The Obligors' Agent must procure that, until such time as no Facility A Advance is outstanding and no Facility A Commitment is in force, an amount equal to the Net DCM Proceeds of any relevant issuance is applied to reduce Facility A in accordance with Clause 8.9 (Application of mandatory Facility A prepayments).


		
	8.7
	Mandatory prepayment/cancellation - disposals


		
	(a)
	In this Clause 8.7:


net proceeds means any amount received by a member of the Group in cash as consideration for a relevant disposal to a person which is not a member of the Group, including the amount of any intercompany loan repaid or prepaid to continuing members of the Group, less all Taxes and costs and expenses incurred or estimated in good faith by the Company to be payable by any member of the Group in connection with the relevant disposal; and
relevant disposal means a disposal made by a member of the Group after the Signing Date to a person which is not a member of the Group under paragraph (k) of the definition of Permitted Disposal.
		
	(b)
	If the net proceeds from a relevant disposal exceed €600,000,000 (or its equivalent in any currency or currencies), until such time as no Facility A Advance is outstanding and no Facility A Commitment is in force, the Obligors’ Agent must:


		
	(i)
	immediately notify the Facility Agent; and


		
	(ii)
	procure that an amount at least equal to those net proceeds is applied to reduce Facility A in accordance with Clause 8.9 (Application of mandatory Facility A prepayments).


		
	8.8
	Mandatory prepayment - failure to satisfy conditions subsequent


If the First Drawdown Date occurs before 29 February 2016 and the Facility Agent does not receive all the documents listed in Schedule 3 (Conditions Subsequent) on or before 29 February 2016 in form and substance reasonably satisfactory to the Facility Agent, the Total Commitments will be automatically cancelled in full at close of business in London on 29 February 2016 and all outstanding Advances, together with accrued interest, and all other amounts outstanding under the Financing Documents will become automatically due and payable on 7 March 2016.
		
	8.9
	Application of mandatory Facility A prepayments


		
	(a)
	Where an amount is to be applied to reduce Facility A: 



43








		
	(i)
	it will be applied first in immediate pro rata cancellation of the Available Commitments of the Banks under Facility A and any balance will be applied in prepayment of such Facility A Advances as may be selected by the Obligors’ Agent (or in the absence of such selection, pro rata against the Facility A Advances) in accordance with paragraph (ii) below; and 


		
	(ii)
	unless the Obligors’ Agent makes an election under paragraph (b) below, the Obligors’ Agent shall make such prepayment as soon as reasonably practicable following receipt of the relevant Net DCM Proceeds (as defined in Clause 8.6 (Mandatory prepayment - capital markets issue)) or, as the case may be, net proceeds (as defined in Clause 8.7 (Mandatory prepayment/cancellation - disposals)), as applicable.


		
	(b)
	The Obligors’ Agent may elect that any prepayment under paragraph (a) above be applied in prepayment of a Facility A Advance on the last day of the then current Interest Period relating to that Facility A Advance.  If the Obligors’ Agent makes that election, a proportion of that Facility A Advance equal to the amount of the relevant prepayment will be due and payable on the last day of the then current Interest Period. If the Interest Period in which any such amount is received ends on a date falling fewer than 5 Business Days from (and including) the day on which any such amount is received then the Obligors’ Agent may elect to make the relevant prepayment on the last day of the current Interest Period or on the last day of the next Interest Period.


		
	(c)
	If the Obligors’ Agent has made an election under paragraph (b) above but a Default has occurred and is outstanding, that election shall no longer apply and a proportion of the Advance in respect of which the election was made equal to the amount of the relevant prepayment shall be immediately due and payable (unless the Majority Banks otherwise agree in writing).


		
	8.10
	Accrued interest and broken funding costs


Any prepayment shall be made together with accrued interest on the amount prepaid and any amounts payable under Clause 25.1 (Breakage Costs Indemnity).
		
	8.11
	Effect of repayment or prepayment


		
	(a)
	No amount of a Term Advance repaid, prepaid or cancelled under this Agreement may subsequently be re-borrowed or re-instated.


		
	(b)
	Any amount repaid or prepaid under the Revolving Facility may, subject to the provisions of this Agreement, be re-borrowed.


		
	(c)
	If all or part of any Bank’s Participation in an Advance under a Term Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4 (Conditions Precedent)), an amount of that Bank’s Commitment (equal to the Original Euro Amount of the amount of the Participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.


		
	8.12
	Limitation


No Borrower may repay or prepay all or any part of an Advance except as expressly provided in this Agreement.
		
	8.13
	Application of prepayments 


		
	(a)
	Any prepayment in part of an Advance pursuant to Clauses 8.4 (Voluntary Prepayment) shall be applied pro rata to each Bank's Participation in that Advance.


		
	(b)
	Subject to paragraph (d) below, any voluntary prepayment will be applied as between the Facilities in accordance with the instructions of the Obligors' Agent.  If the Obligors’ Agent has not given such instructions, such voluntary prepayment shall be applied in the following order:


		
	(i)
	first, in prepayment of Facility A Advances on a pro rata basis;


		
	(ii)
	secondly, in prepayment of Facility B Advances in accordance with paragraph (c) below; and



44








		
	(iii)
	thirdly, in prepayment of Revolving Facility Advances on a pro rata basis.


		
	(c)
	Any voluntary prepayment of the Facility B Advances in part will be applied to reduce Repayment Instalments for Facility B in accordance with the instructions of the Obligors' Agent.  In the absence of instructions from the Obligors’ Agent prior to the date of any such voluntary prepayment, and in the case of any other partial prepayment of the Facility B Advances, the prepayment will be applied to reduce outstanding Repayment Instalments in the same currency as the relevant prepayment pro rata.


		
	(d)
	No voluntary prepayment of Facility B may be made until all Facility A Advances have been repaid or prepaid in full and the Total Facility A Commitments have been cancelled in full.


		
	9.
	CANCELLATION


		
	9.1
	Cancellation


The Obligors' Agent may, by giving the Facility Agent not less than three Business Days' prior notice, cancel all or part of an Available Facility (but if in part, in a minimum amount of €25,000,000).
		
	9.2
	Automatic Cancellation


The Available Commitment of each Bank under a Facility will be automatically cancelled at the close of business on the last day of the Drawdown Period applicable to the Commitment of that Bank under that Facility.
		
	9.3
	Right of cancellation in relation to a Defaulting Bank


		
	(i)
	If any Bank becomes a Defaulting Bank, the Company may, at any time whilst the Bank continues to be a Defaulting Bank, give the Facility Agent ten Business Days' notice of cancellation of each Available Commitment of that Bank.


		
	(ii)
	On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Bank shall immediately be reduced to zero.


		
	(iii)
	The Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Banks.


		
	9.4
	Notice


Any notice of cancellation shall be irrevocable and shall specify the date on which the cancellation shall take effect and the amount of the cancellation.  The Facility Agent shall promptly notify the Banks of receipt of any such notice.
		
	9.5
	Effect of Cancellation


No Borrower may borrow any part of a Facility which has been cancelled.  Any cancellation made in accordance with this Clause 9 shall reduce the Commitments under that Facility rateably.
		
	9.6
	Limitation


No Borrower may cancel all or part of a Facility except as expressly provided in this Agreement.
		
	10.
	CHANGES IN CIRCUMSTANCES


		
	10.1
	Illegality


If it is or becomes illegal in any applicable jurisdiction for a Bank to maintain its Commitments or to continue to make available or fund its Participation in any Advance, then:
		
	(a)
	that Bank shall notify the Facility Agent and the relevant Borrower or Borrowers; and


		
	(b)
	each Commitment of that Bank shall be cancelled immediately; and



45








		
	(c)
	the relevant Borrower or Borrowers shall prepay to the Facility Agent (for the account of that Bank) that Bank's Participation in all Advances (together with accrued interest on the amount prepaid and all other amounts owing to that Bank under this Agreement) within five Business Days of demand by that Bank (or, if permitted by the relevant law and if requested by the relevant Borrower, on the last day of the current Interest Period of the relevant Advances).


Any such prepayment under paragraph (c) above shall be subject to Clause 25.1 (Breakage Costs Indemnity).
		
	10.2
	Increased Costs


		
	(a)
	If, after the Signing Date, a Change occurs which causes an Increased Cost (as defined in paragraph (c) below) to a Bank (or any company of which that Bank is a Subsidiary) then the relevant Borrower shall pay (as additional interest) to the Facility Agent (for the account of that Bank) within 10 Business Days of demand all amounts which that Bank certifies to be necessary to compensate that Bank (or any company of which that Bank is a Subsidiary) for the Increased Cost.


		
	(b)
	Any demand made under paragraph (a) above shall be made by the relevant Bank through the Facility Agent and shall set out in reasonable detail so far as is practicable the basis of computation of the Increased Cost.


		
	(c)
	In this Clause 10.2:


Increased Cost means any cost to, or reduction in the amount payable to, or reduction in the return on capital or regulatory capital achieved by, a Bank (or any company of which that Bank is a Subsidiary) to the extent that it arises, directly or indirectly, as a result of the Change and is attributable to the Commitment or Participation in any Advance of that Bank or the funding of that Bank's Participation in any Advance including any liability to make any payment on account of Tax or otherwise (other than Tax on Overall Net Income) on or calculated by reference to the amount of such Bank's Participation in any Advance and/or any sum received or receivable by it hereunder.
Tax on Overall Net Income means, in relation to a Bank, Tax (other than Tax deducted or withheld from any payment) that is imposed on the net income of that Bank or that is a branch, branch profits or capital tax, if such Tax is imposed by the jurisdiction in which its Lending Office or its head office is situated.
		
	(d)
	None of the Borrowers shall be obliged to make a payment in respect of an Increased Cost under this Clause 10.2 if and to the extent that the Increased Cost:


		
	(i)
	has been compensated for by the operation of Clause 11.10 (Grossing-up) (or which would have been compensated for under Clause 11.10 (Grossing-up) but was not so compensated solely because of the exclusion in paragraph (g) of Clause 11.10 (Grossing-up)); or


		
	(ii)
	is attributable to the wilful breach by a Bank (or any company of which that Bank is a Subsidiary) of any law or regulation; or


		
	(iii)
	is attributable to amounts for which a Finance Party and/or its affiliates are liable in respect of the UK bank levy, taxes under the Finance Act 2011 or bank levy imposed in any other jurisdiction (whether by reference to assets or liabilities or both) in each case in effect or, in the case of a change of rate, announced as intended to apply with effect as of the Signing Date; or


		
	(iv)
	is attributable to a FATCA Deduction required to be made by a Party.


		
	(e)
	If any of the Borrowers is required to pay any amount to a Bank under this Clause 10.2, then, without prejudice to that obligation and so long as the circumstances giving rise to the relevant Increased Cost are continuing and subject to the affected Borrowers giving the Facility Agent and that Bank not less than five Business Days' prior notice (which shall be irrevocable), the affected Borrowers may prepay all, but not part, of that Bank's Participation in the Advances together with accrued interest on the amount prepaid.  Any such prepayment shall be subject to Clause 25.1 (Breakage Costs Indemnity).  On any such prepayment the Commitment of the relevant Bank shall be automatically cancelled.



46








		
	(f)
	In the event that the affected Borrowers over-compensate a Bank under this Clause 10.2, such Bank shall promptly return to the relevant Borrower or Borrowers an amount equal to the amount of over‐compensation.


		
	10.3
	Market Disruption


		
	(a)
	If, in relation to an Advance and a particular Interest Period therefor selected by the relevant Borrower in accordance with Clauses 7.2 (Selection of Interest Periods - Term Advances) or 7.3 (Selection of Interest Periods - Revolving Facility Advances) :


		
	(i)
	the Facility Agent determines that, because of circumstances affecting the relevant interbank market generally, at or about noon on the Rate Fixing Day for the relevant Interest Period that no Screen Rate or Interpolated Screen Rate is available for the purposes of ascertaining EURIBOR or, as the case may be, LIBOR for that Advance for that Interest Period and none or only one of the Reference Banks has supplied a quotation in accordance with the definition of EURIBOR or, as the case may be, LIBOR; or


		
	(ii)
	the Facility Agent has been notified, on or prior to the Rate Fixing Day, by a group of Banks whose Commitments together exceed 40 per cent. of the Total Commitments that in their reasonable opinion matching deposits may not be available to them in the relevant interbank market in the ordinary course of business to fund their Participations in that Advance for that Interest Period,


the Facility Agent shall promptly notify the relevant Borrower and the Banks of that event (such notice being a Market Disruption Notice).
		
	(b)
	If a Market Disruption Notice applies to a proposed Advance, that Advance shall not be made unless the relevant Borrower so requests.  The Facility Agent and the relevant Borrower shall immediately enter into negotiations in good faith for a period of not more than 30 days with a view to agreeing to a substitute basis for calculating the interest rate for the Advance or for funding the Advance (whether in Euros or another currency).  Any substitute basis agreed by the Facility Agent (with the consent of all the Banks) and the relevant Borrower shall take effect in accordance with its terms and be binding on all the Parties.


		
	(c)
	If a Market Disruption Notice applies to an outstanding Advance or a proposed Advance that the relevant Borrower has requested shall be made and, in each case, in respect of a particular Interest Period, then:


		
	(i)
	the Facility Agent and the relevant Borrower shall immediately enter into negotiations in good faith for a period of not more than 30 days with a view to agreeing a substitute basis for calculating the rate of interest for the Advance (whether in Euros or another currency) for such Interest Period;


		
	(ii)
	any substitute basis agreed under sub-paragraph (i) above by the Facility Agent (with the consent of all the Banks) and the relevant Borrower shall take effect in accordance with its terms and be binding on all the Parties;


		
	(iii)
	if no substitute basis is agreed under sub-paragraph (i) above, then, subject to paragraph (d) below, each Bank shall (through the Facility Agent) certify one day before the first day of such Interest Period a substitute basis for maintaining its Participation in the Advance which shall reflect the cost to that Bank of funding its Participation in the Advance from whatever sources it selects plus the Margin applicable to that Bank's Participation in the Advance; and


		
	(iv)
	each substitute basis so certified shall be binding on the relevant Borrower and the certifying Bank and treated as part of this Agreement.


		
	(d)
	So long as the circumstances giving rise to the Market Disruption Notice continue and subject to the relevant Borrower giving the Facility Agent and the Banks not less than three Business Days' prior notice (which shall be irrevocable), the relevant Borrower may prepay the Advance to which the Market Disruption Notice applies together with accrued interest on the amount prepaid.  Any such prepayment shall be subject to Clause 25.1 (Breakage Costs Indemnity).



47








		
	10.4
	Mitigation


If any circumstances arise in respect of any Bank which would, or upon the giving of notice would, result in the operation of Clause 10.1 (Illegality), 10.2 (Increased Costs), 10.3 (Market Disruption), 11.10 (Grossing-up) or 19.6 (Documentary Taxes Indemnity) to the detriment of the relevant Obligor or Obligors, then that Bank shall:
		
	(a)
	promptly upon becoming aware of those circumstances and their results, notify the Facility Agent and the relevant Obligor; and


		
	(b)
	in consultation with the Facility Agent and the relevant Obligor, take all such steps as it determines are reasonably open to it to mitigate the effects of those circumstances (including changing its Lending Office or consulting with the relevant Obligor with a view to transferring some or all of its rights and obligations under this Agreement to another bank or other financial institution acceptable to the relevant Obligor) in a manner which will avoid the circumstances in question and on terms acceptable to the Facility Agent, the relevant Obligor and that Bank,


provided that no Bank shall be obliged to take any steps which in its opinion would or might have an adverse effect on its business or financial condition or the management of its Tax affairs or cause it to incur any material costs or expenses.
		
	10.5
	Certificates


The certificate or notification of the Facility Agent or, as the case may be, the relevant Bank as to any of the matters referred to in this Clause 10 shall be in reasonable detail and shall be prima facie evidence of the matters to which they relate.
		
	11.
	PAYMENTS


		
	11.1
	Place and Time


All payments by the Obligors or a Bank under each Financing Document shall be made to the Facility Agent, in each case to such account of the Facility Agent 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) at such office or bank of the Facility Agent and at such time as the Facility Agent may notify to the Obligors or the Banks for this purpose.
		
	11.2
	Funds


All payments to the Facility Agent under each Financing Document shall be made for value on the due date in freely transferable and readily available funds.
		
	11.3
	Distribution


		
	(a)
	Each payment received by the Facility Agent under the Financing Documents for another Party shall, subject to paragraphs (b) and (c) below, be made available by the Facility Agent to that Party by payment (on the date and in the currency and funds of receipt) to its account with such office or bank as it may notify to the Facility Agent for this purpose by not less than five Business Days' prior notice.


		
	(b)
	The Facility Agent may apply any amount received by it for the Obligors in or towards payment (on the date and in the currency and funds of receipt) of any amount due from the Obligors under the Financing Documents or in or towards the purchase of any amount of any currency to be so applied.


		
	(c)
	Where a sum is to be paid to the Facility Agent under the Financing Documents for another Party, the Facility Agent is not obliged to pay that sum to that Party until it has established that it has actually received that sum.  The Facility Agent may, however, assume that the sum has been paid to it in accordance with the Financing Documents, and, in reliance on that assumption, make available to that Party a corresponding amount.  If the sum has not been made available but the Facility Agent has paid a corresponding amount to another Party, 



48








that Party shall immediately on demand by the Facility Agent refund the corresponding amount together with interest on that amount from the date of payment to the date of receipt, calculated at a rate determined by the Facility Agent to reflect its cost of funds.
		
	11.4
	Business Days


If a payment under a Financing Document is due on a day which is not a Business Day, the due date for that payment shall instead be the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
		
	11.5
	Currency


		
	(a)
	All payments under the Financing Documents relating to costs, losses, expenses or Taxes shall be made in the currency in which the relative costs, losses, expenses or Taxes were incurred.  Any other amount payable under the Financing Documents shall, except as otherwise provided, be made in Euros.


		
	(b)
	Each repayment of an Advance or a part of an Advance and each payment of interest shall be made in the currency in which that Advance is denominated or in respect of which the interest payable is denominated, in each case pursuant to the Financing Documents and on its due date or when that interest accrued (as applicable).


		
	11.6
	Accounts as Evidence


Each Bank shall maintain in accordance with its usual practice an account which shall, as between the Obligors and that Bank and, in the absence of manifest error, be prima facie evidence of the amounts from time to time advanced by, owing to, paid and repaid to that Bank under the Financing Documents.
		
	11.7
	Impaired Facility Agent


		
	(a)
	If, at any time, the Facility Agent becomes an Impaired Facility Agent, an Obligor or a Bank which is required to make a payment under the Financing Documents to the Facility Agent in accordance with this Clause 11 may instead either pay that amount direct to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Bank making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Financing Documents.  In each case such payments must be made on the due date for payment under the Financing Documents.


		
	(b)
	All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.


		
	(c)
	A Party which has made a payment in accordance with this Clause 11.7 shall be discharged of the relevant payment obligation under the Financing Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.


		
	(d)
	Promptly upon the appointment of a successor Facility Agent in accordance with Clause 18.16 (Resignation), each Party which has made a payment to a trust account in accordance with this Clause 11.7 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Facility Agent for distribution in accordance with Clause 11.3 (Distribution).


		
	11.8
	Partial Payments


		
	(a)
	If the Facility Agent receives a payment insufficient to discharge all the amounts then due and payable by the Obligors under the Financing Documents, the Facility Agent shall apply that payment towards the obligations of the Obligors under the Financing Documents in the following order:


		
	(i)
	first, in or towards payment pro rata of any unpaid costs and expenses of the Facility Agent under the Financing Documents;



49








		
	(ii)
	second, in or towards payment pro rata of any accrued interest due but unpaid under the Financing Documents;


		
	(iii)
	third, in or towards payment pro rata of any principal due but unpaid under the Financing Documents; and


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


		
	(b)
	The Facility Agent shall, if so directed by all the Banks, vary the order set out in paragraphs (a)(ii) to (a)(iv) above


		
	(c)
	Paragraphs (a) and (b) of this Clause 11.8 shall override any appropriation made by any Obligor.


		
	11.9
	Set-off and Counterclaim


		
	(a)
	Subject to Clause 8.3(b) (Repayment of Revolving Facility Advances) and paragraph (b) below, all payments by an Obligor under the Financing Documents shall be made without set-off or counterclaim.


		
	(b)
	If a Default is outstanding, a Finance Party may set off any matured obligation due from an Obligor under the Financing Documents (to the extent beneficially owned by that Finance Party) against any obligation (whether or not matured) 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. 


		
	11.10
	Grossing-up


		
	(a)
	Subject to paragraph (b) below, all sums payable to any Finance Party pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.


		
	(b)
	Subject to Clause 23.5(h) (Conditions to Assignments and Transfers) if any deduction or withholding is required by law in respect of any payment due from an Obligor to any Finance Party pursuant to or in connection with any Financing Document that Obligor shall:


		
	(i)
	ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;


		
	(ii)
	pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;


		
	(iii)
	increase the payment in respect of which the deduction or withholding is required so that the net amount received by the payee (which expression when used in this paragraph (b) shall mean any Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and


		
	(iv)
	within 30 days of making a deduction or withholding deliver or procure the delivery to the relative payee of reasonable evidence that the deduction or withholding has been made and the payment of such amount to the relevant Taxation or other authority in accordance with paragraph (b)(ii) above.


		
	(c)
	If any Bank determines, in its absolute discretion, that it has received, recovered, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which an Obligor has made an increased payment under this Clause 11.10, that Bank shall, provided that each Finance Party has received all amounts which are then due and payable by the Obligors under any Financing Document, pay to such Obligor (to the extent that that Bank can do so without prejudicing the amount of the benefit or repayment and the right of that Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, 



50








as that Bank, in its absolute discretion shall determine, will leave that Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
		
	(i)
	each Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit; and


		
	(ii)
	no Bank shall be obliged to disclose any information regarding its business, Tax affairs or Tax computations.


If a Bank has made a payment to an Obligor pursuant to this paragraph (c) on account of any Tax benefit and it subsequently transpires that that Bank did not receive that Tax benefit, or received a lesser Tax benefit, that Obligor shall, on demand, pay to that Bank such sum as that Bank may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this paragraph (c) been made, provided that such sum shall not exceed the amount paid to that Obligor by the Bank pursuant to this paragraph (c).
		
	(d)
	No Bank shall be obliged to make any payment under paragraph (c) above if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).


		
	(e)
	If an Obligor is required to make an increased payment for the account of a Bank under paragraph (b) above, then, without prejudice to that obligation and so long as such requirement exists and subject to the relevant Obligor giving the Facility Agent and that Bank not less than five Business Days' prior notice (which shall be irrevocable), the Borrowers may prepay all, but not part, of that Bank's Participations in the Advances together with accrued interest on the amount prepaid.  Any such prepayment shall be subject to Clause 25.1 (Breakage Costs Indemnity).  On any such prepayment the Commitment of the relevant Bank shall be automatically cancelled. 


		
	(f)
	If, and to the extent that, the effect of Clause 10.2 (Increased Costs) (such as it relates to Tax) or paragraph (b) above can be mitigated by virtue of any law, regulation or the provisions of any double tax treaty or convention relating to the relief from double taxation on income and capital (a Double Tax Convention) (whether by a claim to repayment of any Tax, a claim to make payments without any deduction or withholding or otherwise) each Bank agrees to do all such things as are reasonably requested by the Obligors' Agent with a view to submitting any forms, documents or completing any reasonable procedural formalities within a reasonable time after its receipt from the Obligors' Agent of a notice requesting it to do so for the purpose of ensuring the application of such law, regulation or Double Tax Convention, provided that no Bank shall be required pursuant to this paragraph (f) to take any action which would entail the incurring of any cost or liability (other than reasonable internal administrative costs in completing and submitting the relevant forms or documents, including for the avoidance of doubt, IRS forms W-8 or W-9, if applicable).


		
	(g)
	No additional amount will be payable to a Bank under Clause 10.2 (Increased Costs) or paragraph (b) above in respect of any deduction, withholding or payment of Tax to the extent that such additional amount would not be payable if that Bank had complied with its obligations under paragraph (f) above, or if that Bank had been a person to whom sub-paragraph (i), (ii)(A) or (ii)(B) below applies (as appropriate) but is not or has ceased to be a person to whom sub-paragraph (i), (ii)(A) or (ii)(B) below applies (as appropriate) (unless the reason that an Obligor is obliged to make such deduction, withholding or payment of Tax is due to a change in any law, regulation or applicable tax treaty, or in the interpretation or application thereof, or in any practice or concession of any relevant Taxation authority after the date that Bank became party to this Agreement). Each Bank confirms to the Obligors that, as at the date such Bank becomes a Party, save to the extent it has notified the Facility Agent and the Obligors' Agent in writing otherwise, it is (or, where appropriate, the Designated Entity which is its affiliate is):


		
	(i)
	a person to whom payments by a Borrower (other than the Original Company, New Holdco (if New Holdco is resident for tax purposes in Italy) or a Borrower incorporated or tax resident (including Ferrari Holdco) in Italy) may be made without deduction or withholding for or on account of Taxes 



51








whether by reason of any law, regulation or applicable taxation treaty between the country in which the relevant Borrower is incorporated and the country in which the relevant bank is, or is treated as, resident or carrying on business or otherwise; and
		
	(ii)
	(A)    a person to whom payments by New Holdco (if New Holdco is resident for tax purposes in Italy) or a Borrower incorporated or tax resident in Italy may be made without any deduction or withholding for or on account of taxes also pursuant to Article 26, para. 5 bis, of the Italian Presidential Decree No. 600 dated September 29, 1973; or


(B)    a person different from those indicated under subparagraph (ii)(A) above to whom payments by New Holdco (if New Holdco is resident for tax purposes in Italy) or a Borrower incorporated or tax resident in Italy may be made without any deduction or withholding for or on account of Taxes other than up to a maximum rate of 26 per cent., whether by reason of an applicable taxation treaty between Italy and the country in which the relevant bank is, or is treated as, resident or carrying on business or otherwise, 
and, if it is able to confirm that sub-paragraphs (i), (ii)(A) or (ii)(B) apply on the date on which such Bank becomes a Party, it shall notify the Facility Agent and the Obligors' Agent in writing should it become aware that the relevant sub-paragraph or sub-paragraphs subsequently ceases to be correct.
		
	(h)
	No additional amount will be payable to a Bank under Clause 10.2 (Increased Costs) or this Clause 11.10 in respect of any FATCA Deduction.


		
	11.11
	Disruption to Payment Systems etc.


If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Company that a Disruption Event has occurred:
		
	(a)
	the Facility Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facilities as the Facility Agent may deem necessary in the circumstances;


		
	(b)
	the Facility Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;


		
	(c)
	the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;


		
	(d)
	any such changes agreed upon by the Facility Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Financing Documents notwithstanding the provisions of Clause 20 (Amendments and Waivers);


		
	(e)
	the Facility Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 11.11; and


		
	(f)
	the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.


		
	11.12
	FATCA Information


		
	(a)
	Subject to paragraph (c) below, each Obligor shall, within three months of a reasonable request by a Finance Party and each Finance Party shall, within 15 Business Days of a reasonable request by another Party:



52








		
	(i)
	confirm to that other Party whether it is:


		
	A.
	a FATCA Exempt Party; or


		
	B.
	not a FATCA Exempt Party;


		
	(ii)
	supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and


		
	(iii)
	supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.


For purposes of this paragraph (a), a request shall only be considered “reasonable” if the Party making the request reasonably believes that the information being requested is necessary in connection with its compliance with FATCA or any other law, regulation or exchange of information regime, provided that a Party shall not be required hereunder to provide any forms, documentation or other information materially different in nature or in scope from the forms, documentation or other information that could possibly be required under FATCA and cannot be obtained from the Facility Agent or from information provided by the United States of America Internal Revenue Service or other publicly available databases.
		
	(b)
	If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.


		
	(c)
	Paragraph (a) above shall not oblige any Party to do anything which would or might in its reasonable opinion constitute a breach of:


		
	(i)
	any law or regulation;


		
	(ii)
	any fiduciary duty; or


		
	(iii)
	any duty of confidentiality.


In addition, paragraph (a) above shall not oblige any Obligor to do anything which would or might in its reasonable opinion result in a member of the Group being obliged to disclose such information to the market under applicable laws and regulations.
		
	(d)
	If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Financing Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.


		
	(e)
	If a Borrower is a US Tax Obligor or the Facility Agent or a Borrower reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Bank shall, within 15 Business Days of:


		
	(i)
	where the Borrower is a US Tax Obligor and the relevant Bank is an Original Bank, the Signing Date;


		
	(ii)
	where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Bank is a new Bank, the relevant Transfer Date;


		
	(iii)
	the date a new US Tax Obligor accedes as a Borrower; or


		
	(iv)
	where a Borrower is not a US Tax Obligor, the date of a request from the Facility Agent or a Borrower, 


supply to the Facility Agent or a Borrower (as applicable):
		
	A.
	a withholding certificate on Form W-8, Form W-9 or any other relevant form; or



53








		
	B.
	any withholding statement or other document, authorisation or waiver as the Facility Agent may reasonably require to certify or establish the status of such Bank under FATCA or that other law or regulation.


		
	(f)
	The Facility Agent (i) shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Bank pursuant to paragraph (e) above to the relevant Borrower, and (ii) shall also provide to such Borrower, on its own behalf, any applicable withholding certificate or other form, withholding statement or other document, authorisation or waiver specified in paragraph (e)(iv) (A) and (B) above to certify or establish the status of such Facility Agent under FATCA or that other law or regulation.


		
	(g)
	If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Bank pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Bank shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Bank to do so (in which case the Bank shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.


		
	(h)
	If any withholding certificate, withholding statement, document, authorisation or waiver provided by the Facility Agent on its own behalf pursuant to paragraph (f)(ii) above is or becomes materially inaccurate or incomplete, the Facility Agent shall update it and promptly provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower unless it is unlawful for the Facility Agent to do so (in which case the Facility Agent shall promptly notify that Borrower).


		
	(i)
	The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Bank pursuant to paragraph (e) or (g) above without further verification, except as otherwise provided by law. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above, except as otherwise required by law.


		
	11.13
	FATCA Deduction


		
	(a)
	Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.


		
	(b)
	Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Company, the Facility Agent and the other Finance Parties.


		
	12.
	GUARANTEE


		
	12.1
	Guarantee and indemnity


Each Guarantor jointly and severally and irrevocably and unconditionally:
		
	(a)
	guarantees to each Finance Party punctual payment by each Borrower of all that Borrower's payment obligations under the Financing Documents; 


		
	(b)
	undertakes with each Finance Party that, whenever a Borrower does not pay any amount when due under or in connection with any Financing Document, it must immediately on demand by the Facility Agent pay that amount as if it were the principal obligor; and


		
	(c)
	indemnifies each Finance Party immediately on demand against any loss or liability suffered by that Finance Party if any payment obligation guaranteed by it hereunder is or becomes unenforceable, invalid or illegal; the amount of the loss or liability under this indemnity will be equal to the amount the Finance Party would otherwise have been entitled to recover.



54








Any demand made under this Clause 12.1 shall at the same time (but without prejudice to the validity of such demand) be copied to the Obligors' Agent.
		
	12.2
	Continuing guarantee


This guarantee is a continuing guarantee and will extend to the ultimate balance of all sums payable by any Obligor under the Financing Documents, regardless of any intermediate payment or discharge in whole or in part.
		
	12.3
	Reinstatement


		
	(a)
	If any discharge (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) or arrangement is made in whole or in part on the faith of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation or otherwise without limitation, the liability of each Guarantor under this Clause 12 will continue as if the discharge or arrangement had not occurred.


		
	(b)
	Each Finance Party may (but is not in any way obliged to) concede or compromise any claim that any payment, security or other disposition is liable to avoidance or restoration.


		
	12.4
	Waiver of defences


The obligations of each Guarantor under this Clause 12 will not be affected by any act, omission or thing which, but for this provision, would reduce, release or prejudice any of its obligations under this Clause 12 (whether or not known to it or any Finance Party).  This includes:
		
	(a)
	any time or waiver granted to, or composition with, any person;


		
	(b)
	any release of any person under the terms of any composition or arrangement;


		
	(c)
	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 person; 


		
	(d)
	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;


		
	(e)
	any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any person;


		
	(f)
	any amendment, supplement or extension restatement (however fundamental) of a Financing Document or any other document or security; or


		
	(g)
	any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Financing Document or any other document or security.


		
	12.5
	Immediate recourse


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 right or security or claim payment from any person before claiming from that Guarantor under this Clause 12.  
		
	12.6
	Appropriations


Until all amounts which may be or become payable by the Obligors under the Financing Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may without affecting the liability of any Guarantor under this Clause 12 :
		
	(a)
	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 



55








		
	(b)
	apply and enforce such other moneys, security or rights in such manner and order as it sees fit (whether against those amounts or otherwise); and


		
	(c)
	hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of that Guarantor's liability under this Clause 12.


		
	12.7
	Non-competition


Unless: 
		
	(a)
	all amounts which may be or become payable by the Obligors under the Financing Documents have been irrevocably paid in full; or


		
	(b)
	the Facility Agent otherwise directs,


no Guarantor will, after a claim has been made or by virtue of any payment or performance by it under this Clause 12:
		
	(i)
	be subrogated to any rights security or moneys held, received or receivable by any Finance Party (or any trustee or agent on its behalf);


		
	(ii)
	be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of that Guarantor's liability under this Clause 12;


		
	(iii)
	claim, rank, prove or vote as a creditor of any Obligor or its estate in competition with any Finance Party (or any trustee or agent on its behalf); or


		
	(iv)
	receive, claim or have the benefit of any payment, distribution or security from or on account of any Obligor, or exercise any right of set-off as against any Obligor.


Each Guarantor must hold on trust for the Finance Parties and immediately pay or transfer to the Facility Agent for the Finance Parties or in accordance with any directions given by the Facility Agent, any payment or distribution received by it contrary to this Clause 12.
		
	12.8
	Release of Guarantors' right of contribution


If any Guarantor ceases to be a Guarantor in accordance with the terms of the Financing Documents then on the date that Guarantor ceases to be a Guarantor:
		
	(a)
	that Guarantor will be released by each other Guarantor from any liability whatsoever to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Financing Documents; and


		
	(b)
	each other Guarantor waives any right it may have by reason of the performance of its obligations under the Financing Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any right of any Finance Party under any Financing Document or of any other security taken under, or in connection with, any Financing Document by any Finance Party.


		
	12.9
	Additional security


This guarantee is in addition to and is not in any way prejudiced by any other security now or subsequently held by any Finance Party.
		
	12.10
	Italian limitation


		
	(a)
	In this Clause 12.10:



56








Intercompany Debt means any loan in any form (including, without limitation, any intercompany loan), documentary credit (including any intercompany documentary credit or other form of financial support) or any other item constituting Financial Indebtedness.
		
	(b)
	Notwithstanding any provision to the contrary under this Agreement or any other Financing Document, the obligations of the Italian Guarantors under this Clause 12 shall at any time:


		
	(i)
	in relation to the obligations of any Italian Guarantor in respect of the Facilities owed by any other Borrower, being a direct or indirect Subsidiary of that Italian Guarantor, be unlimited except as provided in paragraph (iii) below; 


		
	(ii)
	in relation to the obligations of any Italian Guarantor in respect of the Facilities owed by any other Borrower, not being a direct or indirect Subsidiary of that Italian Guarantor, be limited to the aggregate from time to time of:


		
	1.
	the highest exposure held at any point in time in the aggregate by that Italian Guarantor and any of its direct or indirect Subsidiaries as Borrowers under the Facilities (regardless of any repayment or cancellation of amounts or liabilities outstanding thereunder); and


		
	2.
	the highest exposure held at any point in time in the aggregate by that Italian Guarantor and any of its direct or indirect Subsidiaries, under all Intercompany Debt advanced or made available, directly or indirectly, to any of them by any Obligor (regardless of any repayment or cancellation of amounts or liabilities outstanding thereunder from the Signing Date); and


		
	(iii)
	for the purposes of Article 1938 of the Italian Civil Code, not exceed, in any case, the overall amount equal to 120% of (A) the Total Commitments as at the Signing Date; or (B) if decreased after the Signing Date (other than as a result of the occurrence of a Change of Control pursuant to Clause 8.5 (Mandatory prepayment ‐ change of control) or pursuant to Clauses 9 (Cancellation), 10.1 (Illegality), 11.10(e) (Grossing-up) or 16.2 (Acceleration), the Total Commitments immediately following such decrease.


		
	(c)
	In addition, notwithstanding any provision to the contrary under this Agreement or any other Financing Document, no Italian Guarantor shall assume (or shall be deemed to have assumed) obligations under this Clause 12 in respect of any affected portion of a Facility to the extent this results in unlawful financial assistance within the meaning of article 2358 or article 2474 of the Italian Civil Code.


		
	12.11
	Dutch limitation


In respect of a Dutch Guarantor, the guarantee under this Clause 12 does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of Section 2:98c of the Dutch Civil Code.
		
	12.12
	Other limitations


The guarantee of any Additional Guarantor is subject to any limitations set out in the Accession Memorandum executed by that Additional Guarantor.
		
	13.
	ADDITIONAL OBLIGORS


		
	13.1
	Request for Additional RCF Borrower or Guarantor


		
	(a)
	The Company or the Obligors' Agent may request:


		
	(i)
	that any of the Company's Industrial Subsidiaries become an Additional RCF Borrower; and/or


		
	(ii)
	that any of the Company's Industrial Subsidiaries or New Holdco become an Additional Guarantor,



57








by delivering to the Facility Agent an Accession Memorandum duly executed by the Company and such Subsidiary, together with the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent) in relation to such Subsidiary.
		
	(b)
	The prior consent of all the Banks is required if a proposed Additional RCF Borrower is incorporated in a jurisdiction other than: 


		
	(i)
	the jurisdiction of incorporation of another Borrower; 


		
	(ii)
	the United Kingdom; 


		
	(iii)
	any state of the US; 


		
	(iv)
	the Netherlands; or


		
	(v)
	Germany.


		
	13.2
	Additional RCF Borrower or Guarantor Conditions Precedent


An Industrial Subsidiary or New Holdco, in respect of which the Company or the Obligors' Agent has delivered an Accession Memorandum to the Facility Agent, shall become an Additional RCF Borrower and/or, as the case may be, Additional Guarantor and assume all the rights, benefits and obligations of an RCF Borrower and/or, as the case may be, Guarantor as if it had been an Original Party to this Agreement in such capacity, on the date on which the Facility Agent notifies the Company or the Obligors' Agent that the Facility Agent has received, in form and substance satisfactory to it (acting reasonably), all documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent) in relation to such Industrial Subsidiary or New Holdco. 
		
	13.3
	Resignation of an Obligor 


		
	(a)
	The Company or the Obligors' Agent may at any time request that an Obligor (other than the Company) shall cease to be a Borrower and/or Guarantor by delivering to the Facility Agent a Resignation Notice. 


		
	(b)
	A Resignation Notice shall be effective (and the relevant Obligor shall cease to be a Borrower and/or (as the case may be) a Guarantor) on the date specified in the Resignation Notice provided that no amount is then due from the relevant Obligor under the Financing Documents and:


		
	(i)
	if it is resigning as a Borrower, no Advance is outstanding to it; and


		
	(ii)
	if it is resigning as a Guarantor, no Potential Default or Default is outstanding or will be in existence immediately after its resignation.


		
	14.
	REPRESENTATIONS AND WARRANTIES


		
	14.1
	Representations and Warranties


The representations set out in this Clause 14 are made by each Obligor to each Finance Party on the Signing Date.  Each Obligor represents and warrants in respect of itself and (where expressly stated) in respect of its Subsidiaries or Material Subsidiaries that: 
		
	(a)
	Status: it and each of its Material Subsidiaries is a limited company duly incorporated under the laws of its jurisdiction of incorporation and it possesses the capacity to sue and be sued in its own name and has the power to carry on its business and to own its property and other assets;


		
	(b)
	Powers and authority: it has power to execute, deliver and perform its obligations under the Financing Documents and to carry out the transactions contemplated by those documents and all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance of the same;


		
	(c)
	Binding obligations: subject to the Reservations, its obligations under the Financing Documents constitute its legal, valid, binding and enforceable obligations;



58








		
	(d)
	Contraventions: the execution, delivery and performance by it of the Financing Documents does not:


		
	(i)
	contravene any applicable law or regulation or any order of any governmental or other official authority, body or agency or any judgment, order or decree of any court having jurisdiction over it; or


		
	(ii)
	contravene or conflict with its constitutional documents;


		
	(e)
	Insolvency: it and each of its Material Subsidiaries has not taken any action nor (to the best of its knowledge, information and belief) have any steps been taken or legal proceedings been started against it for its winding‐up, dissolution, administration or re-organisation or for the appointment of a receiver, administrative receiver, or administrator, trustee or similar officer of it or of a material part of its assets;


		
	(f)
	No default: to the best of its knowledge, information and belief it and each of its Material Subsidiaries is not in breach of or in default in any material respect under any agreement relating to Financial Indebtedness to which it is a party or which is binding on it or any of its assets to an extent which would have or could reasonably be expected to have a Material Adverse Effect;


		
	(g)
	Litigation: to the best of its information, knowledge and belief, no action, litigation, arbitration or administrative proceeding has been commenced or is pending against it or any of its Subsidiaries which would have or could reasonably be expected to have a Material Adverse Effect;


		
	(h)
	Original Financial Statements: the Original Financial Statements of Ferrari Holdco were prepared in accordance with GAAP and give a true and fair view of its pro-forma financial position at the date to which they were prepared and the results of its operations during the Financial Year to which they relate;


		
	(i)
	No misleading information: to the best of its knowledge, information and belief:


		
	(i)
	any factual information provided by any member of the Group for the purposes of the Information Package was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated;


		
	(ii)
	the financial projections (if any) contained in the Information Package have been prepared in good faith on the basis of recent historical information and on the basis of assumptions believed to be reasonable on the date they were made; and


		
	(iii)
	nothing has occurred or been omitted from the Information Package and no information has been given or withheld that results in the information contained in the Information Package being untrue or misleading in any material respect;


		
	(j)
	No material adverse change: since the date of the Original Financial Statements no event has occurred which has had or could reasonably be expected to have a Material Adverse Effect;


		
	(k)
	Margin Stock/U.S. Debtor: 


		
	(i)
	the proceeds of the Advances have not been and will not be used to buy, purchase or maintain any Margin Stock (as defined in Regulation U of the Board of Governors of the Federal Reserve of the United States of America) or for any other purpose which violates the provisions of Regulation U of the Board of Governors of the Federal Reserve of the United States of America; and


		
	(ii)
	no U.S. Debtor is subject to regulation under any United States of America Federal law or state law or regulation that limits its ability to incur or guarantee indebtedness; 


		
	(l)
	Sanctions: subject to Clause 1.9 (Restricted Bank / Restricted Obligor):



59








		
	(i)
	no member of the Group, nor to the Obligors’ reasonable knowledge, any of the Obligors’ directors, senior executive officers or any officer with the ability to direct or control the operations of any Obligor is a person with whom dealings are prohibited or restricted pursuant to Sanctions;


		
	(ii)
	except as publicly known or publicly disclosed, in each case prior to the Signing Date, no Obligor nor, to the Obligors’ reasonable knowledge, any Material Subsidiary or any of the Obligors’ directors, senior executive officers or any officer with the ability to direct or control the operations of any Obligor has received notice of any claim, action, suit, proceeding or investigation (each a Claim) against it for being in breach of Sanctions by any Sanctions Authority, where such Claim is required to be publicly disclosed by the Company pursuant to applicable equity or debt capital markets disclosure obligations of the Company.


		
	(m)
	Anti-corruption law: except as publicly known or publicly disclosed, in each case prior to the Signing Date:


		
	(i)
	each Obligor and, to the Obligors’ reasonable knowledge, each Material Subsidiary and each of the Obligors’ directors, senior executive officers or any officer with the ability to direct or control the operations of any Obligor conducts its businesses in compliance with applicable Anti-Corruption Laws except for any non-compliance with such laws which (A) is not required to be publicly disclosed by the Company pursuant to applicable equity or debt capital markets disclosure obligations of the Company or (B) is required to be so disclosed (and has been disclosed to the Facility Agent), but the Company has not received notice from the Facility Agent that, in the opinion of the Majority Banks (acting reasonably), such non-compliance is materially adverse to the business of the Group or to the position of the Finance Parties; and


		
	(ii)
	no Obligor nor, to any Obligor’s reasonable knowledge, any of the Obligors’ directors, senior executive officers or any officer with the ability to direct or control the operations of any Obligor has been subject to any Claim with respect to a violation of applicable Anti-Corruption Laws where such Claim is required to be publicly disclosed by the Company pursuant to applicable equity or debt capital markets disclosure obligations of the Company; and


		
	(n)
	Anti-money laundering law: except as publicly known or publicly disclosed, in each case prior to the Signing Date:


		
	(i)
	each Obligor and, to the Obligors’ reasonable knowledge, each Material Subsidiary and each of the Obligors’ directors, senior executive officers or any officer with the ability to direct or control the operations of any Obligor conducts its businesses in compliance with applicable Anti-Money Laundering Laws except for any non-compliance with such laws which (A) is not required to be publicly disclosed by the Company pursuant to applicable equity or debt capital markets disclosure obligations of the Company or (B) is required to be so disclosed (and has been disclosed to the Facility Agent), but the Company has not received notice from the Facility Agent that, in the opinion of the Majority Banks (acting reasonably), such non-compliance is materially adverse to the business of the Group or to the position of the Finance Parties; and


		
	(ii)
	no Obligor nor, to any Obligor’s reasonable knowledge, any Material Subsidiary nor any of the Obligors’ directors, senior executive officers or any officer with the ability to direct or control the operations of any Obligor has been subject to any Claim with respect to a violation of applicable Anti-Money Laundering Laws where such Claim is required to be publicly disclosed by the Company pursuant to applicable equity or debt capital markets disclosure obligations of the Company.


		
	14.2
	Repetition


The representations and warranties:

60








		
	(a)
	in paragraph (a) of Clause 14.1 (Representations and Warranties) shall survive the execution of this Agreement in respect of the Obligors only and shall be deemed to be repeated by each Obligor in respect of the Obligors only on the Separation Date, the date on which each Drawdown Notice is given and on the first day of each Interest Period; 


		
	(b)
	in paragraphs (b) to (d) (inclusive), (k), (l)(i), (m)(i) and (n)(i) of Clause 14.1 (Representations and Warranties) shall survive the execution of this Agreement and shall be deemed to be repeated by each Obligor on the Separation Date, the date on which each Drawdown Notice is given and on the first day of each Interest Period (but when the representations in (m)(i) and (n)(i) of Clause 14.1 (Representations and Warranties) are deemed to be repeated, these shall not be repeated in respect of Material Subsidiaries); 


		
	(c)
	in paragraph (i) of Clause 14.1 (Representations and Warranties) shall survive the execution of this Agreement and shall be deemed to be repeated by the Company (subject to any disclosures made by the Company on or before the date of deemed repetition) on the date notified by the Facility Agent to the Company as the date on which Banks are to become party to this Agreement pursuant to primary syndication of the Facilities.


		
	15.
	UNDERTAKINGS


		
	15.1
	Information Undertakings


Each Obligor (or, in the case of paragraphs (b) to (d) below, the Company) undertakes that during the Facility Period it shall, unless the Facility Agent (acting on the instructions of the Majority Banks) otherwise agrees:
		
	(a)
	Annual Statements: within 5 Business Days of the same becoming publicly available (and in any event within 180 days after the end of each of its Financial Years), deliver to the Facility Agent in sufficient copies for all the Banks its audited consolidated financial statements for each such Financial Year (together with, if relevant, any applicable Additional Information), provided that an Obligor shall only be obliged to provide such statements on a consolidated basis if that Obligor prepares such statements on this basis.


		
	(b)
	Semi-annual statements: within 5 Business Days of the same becoming publicly available (and in any event within 90 days after the end of each semi-annual period in each of the Company's Financial Years), deliver to the Facility Agent in sufficient copies for all the Banks the Company's consolidated financial statements for each such semi-annual period (together with, if relevant, any applicable Additional Information);


		
	(c)
	Quarterly statements: within 5 Business Days of the same becoming publicly available (and in any event within 90 days after the end of the first and third quarter of each of the Company's Financial Years), deliver to the Facility Agent in sufficient copies for all the Banks the Company's consolidated financial statements for each such quarter (together with, if relevant, any applicable Additional Information);


		
	(d)
	Margin Certificate: at the same time as the Company’s Form 6-K relating to the earnings for any financial quarter is publicly available (or if the Company is not required to publish a Form 6-K (or any such Form 6-K does not disclose Consolidated Adjusted EBITDA and Consolidated Total Net Debt (or their components)), then at the same time as Consolidated Adjusted EBITDA and Consolidated Total Net Debt (or their components) for a financial quarter are publicly available), and in any event no later than the date that each set of the Company's financial statements is delivered pursuant to paragraph (a), (b) or (c) above, the Company shall supply a Margin Certificate signed by a duly authorised officer or a director of the Company;


		
	(e)
	Shareholders' documents: deliver to the Facility Agent as soon as reasonably practicable in sufficient copies for all the Banks all documents despatched by an Obligor to its creditors generally, and in addition, in the case of the Company only (and for so long as it is listed on a recognised stock exchange) 



61








to its shareholders generally, in each case other than documents which are available on the Company's website;
		
	(f)
	General Financial Information: if a Default is outstanding, such information regarding the financial condition and operations of the Group as a Bank may reasonably request provided that no Obligor shall be required to provide information which if provided would:


		
	(i)
	breach a law or regulation binding on that Obligor; 


		
	(ii)
	breach a confidentiality obligation of that Obligor; or


		
	(iii)
	result in a member of the Group being obliged to disclose such information to the market under applicable laws and regulations; and


		
	(g)
	Know your customer: promptly on the request of any Finance Party supply to that Finance Party any documentation or other evidence which is reasonably requested by that Finance Party (whether for itself, on behalf of any Finance Party or any prospective new Finance Party) to enable a Finance Party or prospective new Bank to carry out and be satisfied with the results of all know your customer requirements.


		
	15.2
	Form of financial statements


		
	(a)
	The Company must ensure that each set of financial statements supplied under this Agreement gives (if audited) a true and fair view of, or (if unaudited) fairly represents, the financial condition (consolidated or otherwise) of the relevant person as at the date to which those financial statements were drawn up.


		
	(b)
	The Company must notify the Facility Agent if either of the following occurs:


		
	(i)
	the Company does not prepare its audited consolidated financial statements under IFRS; or


		
	(ii)
	the Company prepares its audited consolidated financial statements under IFRS but both:


		
	(A)
	the preparation uses principles or practices which differ from the principles or practices applied in the Company's Original Financial Statements; and


		
	(B)
	the differences in such principles or practices (relative to the principles or practices applied in the Company’s Original Financial Statements) have a material impact on the calculation of the ratios in Clause 7.10 (Margin),


(each an Accounting Event).
		
	(c)
	If an Accounting Event occurs (but not otherwise), then together with the notification to the Facility Agent of the Accounting Event, the Company must state whether its audited consolidated financial statements:


		
	(i)
	are instead prepared under US GAAP (a US GAAP Change); or 


		
	(ii)
	are otherwise instead prepared on a different basis from the principles or practices applied in the Company’s Original Financial Statements (a Different Basis Change), 


(each an Accounting Change).
		
	(d)
	In the case of any US GAAP Change, and if requested by the Facility Agent in the case of any Different Basis Change, the Company must supply to the Facility Agent:


		
	(i)
	a full description of the relevant Accounting Change; and


		
	(ii)
	sufficient information to enable the Finance Parties to make a proper comparison between the components of Consolidated Adjusted EBITDA and Consolidated Total Net Debt shown by the set of financial statements prepared on the basis of the Accounting Change and the Company's Original 



62








Financial Statements or its most recent audited consolidated financial statements (if any) delivered to the Facility Agent under this Agreement.
		
	(e)
	If requested by the Company or (following any Different Basis Change only) the Facility Agent, the Company and the Facility Agent must enter into discussions for a period of not more than 30 days with a view to agreeing to any amendments required to be made to this Agreement to place the Company and the Banks in the same position as they would have been in if the Accounting Change had not happened.  Any agreement between the Company and the Facility Agent will be, with the prior consent of the Majority Banks, binding on all the Parties.


		
	(f)
	If no agreement is reached under paragraph (e) above on the required amendments to this Agreement, the Company must either: 


		
	(i)
	ensure that its auditors certify those amendments (so long as the auditors are willing to give such certification, in which case the certificate of the auditors will be, in the absence of manifest error, binding on all the Parties); or 


		
	(ii)
	(in all other cases) continue to supply the information set out in paragraph (d) above.


		
	15.3
	Positive Undertakings - Obligors


Each Obligor (and where an undertaking is expressed to apply to a member of the Group which is a Subsidiary of an Obligor, that Obligor shall ensure that that Subsidiary performs that undertaking) undertakes that during the Facility Period it shall, unless the Facility Agent (acting on the instructions of the Majority Banks) otherwise agrees:
		
	(a)
	Authorisations: obtain, maintain and comply with the terms of any authorisation, approval, licence, consent, exemption, clearance, filing or registration required in or by the laws and regulations of its jurisdiction of incorporation to enable it to lawfully enter into and perform its obligations under, or for the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of, each Financing Document;


		
	(b)
	Compliance with laws: comply with all laws to which it is subject where failure to do so could reasonably be expected to have a Material Adverse Effect;


		
	(c)
	Ranking of obligations: ensure that its obligations under the Financing Documents shall at all times rank at least pari passu with all its other present and future unsecured and unsubordinated obligations (whether actual, contingent, present or future) except for any obligations which are mandatorily preferred by law; 


		
	(d)
	Notification of Default: promptly, upon becoming aware of the same, notify the Facility Agent of a Default or Potential Default which is outstanding and, upon receipt of a written request to that effect from the Facility Agent, confirm to the Facility Agent that, save as previously notified to the Facility Agent or as notified in such confirmation, no Default or Potential Default is outstanding;


		
	(e)
	ERISA: comply in all respects with ERISA where failure to do so could reasonably be expected to have a Material Adverse Effect; 


		
	(f)
	Environmental: ensure that each member of the Group complies with all Environmental Law and Environmental Approvals applicable to it where failure to do so has or is reasonably likely to have a Material Adverse Effect (where Environmental Approval means any authorisation required by an Environmental Law and Environmental Law means any law or regulation concerning (i) the protection of health and safety, (ii) the environment, or (iii) any emission or substance which is capable of causing harm to any living organism or the environment);


		
	(g)
	Insurance: ensure that each member of the Group shall insure its business and assets with insurance companies to such an extent and against such risks as companies engaged in a similar business would 



63








prudently insure save where failure to do so could not reasonably be expected to have a Material Adverse Effect; 
		
	(h)
	Operations of the Group: ensure that the design, engineering, production and sale of automobiles and other vehicles (and businesses related, ancillary or incidental thereto including the licensing, marketing, promotion and extension of the Group’s brands) shall at all times continue to be the main business of the Group taken as a whole;


		
	(i)
	Financial Services Subsidiaries: ensure that the consolidated total assets of the Financial Services Subsidiaries less the intangible assets, investments and deferred tax assets of the Financial Services Subsidiaries, as at the end of each financial quarter of the Group shall exceed the aggregate amount of Financial Indebtedness of the Financial Services Subsidiaries outstanding on the last day of such financial quarter; and


		
	(j)
	Anti-corruption and anti-money laundering: ensure that each member of the Group shall maintain policies and procedures that are reasonably designed to promote and to achieve compliance with applicable Anti-Corruption Laws and Anti-Money Laundering Laws.


		
	15.4
	Negative Undertakings


Each Obligor (and where an undertaking is expressed to apply to a member of the Group which is a Subsidiary of an Obligor, that Obligor shall ensure that that Subsidiary performs that undertaking) undertakes that during the Facility Period it shall, unless the Facility Agent (acting on the instructions of the Majority Banks) otherwise agrees: 
		
	(a)
	Negative Pledge: ensure that no Obligor or member of the Industrial Group:


		
	(i)
	creates any Encumbrance, over any of its assets, to secure any Financial Indebtedness unless such Encumbrance or such other security as the Facility Agent (acting on the instructions of the Majority Banks) considers equivalent thereto, is at the same time extended equally and rateably to the obligations of such Obligor or member of the Industrial Group under the Financing Documents; or


		
	(ii)
	disposes of any of its assets on terms where it is or may be re-acquired or acquired by another Obligor or member of the Industrial Group in circumstances where the transaction is entered into primarily as a method of raising Financial Indebtedness,


other than a Permitted Encumbrance. 
		
	(b)
	Subsidiary Indebtedness: ensure that no Obligor or member of the Industrial Group (other than the Company) may incur or have outstanding any Financial Indebtedness other than Permitted Subsidiary Indebtedness;


		
	(c)
	Restriction on disposals: ensure that no Obligor or member of the Industrial Group either in a single transaction or in a series of transactions (and whether related or not), disposes of all or any part of its assets other than a Permitted Disposal;


		
	(d)
	Sanctions: subject to Clause 1.9 (Restricted Bank / Restricted Obligor), ensure that no Obligor shall directly or knowingly indirectly, and neither the Company nor any Obligor shall knowingly permit or authorise any other member of the Group to directly or indirectly:


		
	(i)
	use, lend, make payments of, or otherwise make available, all or any part of the proceeds of the Facilities to fund or facilitate any transaction or activities or in any manner which, in each case, results in the Obligors or any Finance Party being in breach of any Sanctions (if and to the extent applicable to any of them) or becoming a target of Sanctions; or



64








		
	(ii)
	fund all or part of any payment under or in connection with the Facilities out of proceeds derived from business or transactions with a target of Sanctions in each case in breach of any Sanctions by any member of the Group.  


		
	15.5
	Italian Transparency rules


Pursuant to and in accordance with the transparency rules enacted under Article 9.1 of the CICR Resolution of 4 March 2003 effective as of October 2003 and the following transparency rules applicable to transactions and banking and financial services of Bank of Italy published in the Italian official gazette (Gazzetta Ufficiale) on 29 July 2015 (the Transparency Rules), the Parties mutually acknowledge and declare that this Agreement and any of its terms and conditions (including the recitals and the Schedules thereto) have been negotiated (together with their respective legal counsels) on an individual basis and, as a result, this Agreement falls into the category of the agreements "che costituiscono oggetto di trattativa individuale" which are exempted from the application of Section II of the Transparency Rules and article 1341 of the Italian Civil Code (as amended from time to time). 
		
	16.
	DEFAULT


		
	16.1
	Default


Each of the following shall be a Default:
		
	(a)
	Non-payment: any of the Obligors does not pay on the due date any amount payable by it under this Agreement at the place and in the currency and funds in which it is expressed to be payable unless the failure to pay such amount is due solely to administrative or technical delays in the transmission of funds and such amount is paid within five Business Days after its due date for payment; or


		
	(b)
	Other defaults: any of the Obligors breaches any of its obligations under any Financing Document (other than the obligations referred to in paragraph (a) above or Clause 11.12 (FATCA Information)) and if that breach is capable of remedy, it is not remedied within 30 days after written notice of that breach has been given by the Facility Agent to the relevant Obligor or, if earlier, 30 days after the relevant breach should first have been notified to the Facility Agent under Clause 15.3(d) (Positive Undertakings - Obligors); or


		
	(c)
	Breach of representation or warranty: any representation, warranty or statement made or deemed to be repeated by any of the Obligors under this Agreement or in any document delivered by it or on its behalf under or in connection with this Agreement is or proves to have been incorrect or misleading when made or deemed to have been repeated and, if the circumstances giving rise to such incorrect or misleading representation, warranty or statement are capable of remedy, such circumstances are not remedied within 30 days of the earlier of (A) the Facility Agent giving written notice to the relevant Obligor and (B) such Obligor becoming aware of that breach; or


		
	(d)
	Unlawfulness or repudiation: it is unlawful for any of the Obligors to perform or comply with, or any of the Obligors repudiates, any of its obligations under any Financing Document or, subject to the Reservations, any of those obligations is not legal, valid, binding, effective and enforceable; or


		
	(e)
	Cross-payment default and cross-acceleration: any of the following occurs with respect to any member of the Group:


		
	(i)
	any of its Financial Indebtedness (excluding Non-recourse Securitisation Debt) is not paid when due or within any originally applicable grace period; or


		
	(ii)
	any of its Financial Indebtedness (excluding Non-recourse Securitisation Debt) becomes prematurely due and payable as a result of an event of default,



65








unless the aggregate amount of all such Financial Indebtedness (excluding Non-recourse Securitisation Debt) is less than €50,000,000 or its equivalent in other currencies and excluding any such Financial Indebtedness in relation to which the relevant event:
		
	(A)
	is being contested in good faith by appropriate proceedings; or


		
	(B)
	has arisen in a Non-OECD Country and the Group has set aside in a designated bank account sufficient monies to repay such Financial Indebtedness in full,


and further excluding any Financial Indebtedness to the extent that such Financial Indebtedness is outstanding under an agreement between a borrower which is a member of the Group incorporated in India or China and a creditor incorporated in the same jurisdiction and the proceeds of such Financial Indebtedness have been used in the business of that borrower (or any of its affiliates in the same jurisdiction), provided that if there is any recourse by the creditor of such Financial Indebtedness to a member of the Group not incorporated in the relevant jurisdiction (a Relevant Group Member), such Financial Indebtedness will cease to be excluded if the circumstances giving rise to such Financial Indebtedness are not remedied within 20 Business Days of such circumstances first applying or if earlier, (if written demand for payment is made on a Relevant Group Member) the day falling 5 Business Days after the expressed due date for payment by such Relevant Group Member if such payment has not been made by that time; or
		
	(f)
	Attachment or distress: a creditor or encumbrancer attaches or takes possession of or a receiver or similar officer is appointed over the whole or any material part of the assets of any Obligor or Material Subsidiary, or a distress, execution, sequestration or other process is levied or enforced upon or sued out against, the whole or any material part of the assets of Obligor or Material Subsidiary and such process is not discharged within 30 days; or 


		
	(g)
	Inability to pay debts: any Obligor or Material Subsidiary:


		
	(i)
	suspends payment of its debts generally or is unable or admits its inability to pay its debts generally as they fall due; or


		
	(ii)
	proposes or enters into any composition or other arrangement for the benefit of its creditors generally; or


		
	(iii)
	has proceedings commenced against it with a view to the readjustment or rescheduling of any of its Financial Indebtedness which it would not otherwise be able to pay as it fell due; or


		
	(h)
	Insolvency proceedings: any Obligor or Material Subsidiary:


		
	(i)
	is adjudicated or found insolvent; or


		
	(ii)
	has an order made against it by any competent court or passes a resolution for its winding-up or dissolution or for the appointment of a liquidator, administrator, trustee, receiver, administrative receiver or similar officer in respect of it or the whole or any substantial part of its assets, except for a solvent liquidation or reorganisation of such member of the Group; or


		
	(i)
	Analogous proceedings: in respect of any Obligor or Material Subsidiary, any event occurs which under the laws of any jurisdiction has a similar or analogous effect to any of the events mentioned in paragraph (f), (g) or (h) above; or


		
	(j)
	United States of America Bankruptcy Laws: any of the following occurs in respect of a U.S. Debtor:


		
	(i)
	it makes a general assignment for the benefit of creditors;


		
	(ii)
	it commences a voluntary case or proceeding under any U.S. Bankruptcy Law; or



66








		
	(iii)
	an involuntary case under any U.S. Bankruptcy Law is commenced against it and is not controverted within 30 days or is not dismissed or stayed within 90 days after commencement of the case; or


		
	(iv)
	an order for relief or other order approving any case or proceeding is entered under any U.S. Bankruptcy Law,


and, for this purpose, U.S. Bankruptcy Law means the United States of America Bankruptcy Code 1978 or any other United States of America Federal or state bankruptcy, insolvency or similar law; or
		
	(k)
	Cessation of business: any Obligor suspends, ceases or threatens to suspend or cease to carry on its business unless (except in the case of the Company) such cessation, or threatened cessation, is in connection with a merger, consolidation or any other form of combination with another company and such company assumes all obligations of any Obligor respectively under the Financing Documents or (in the case of the Company) unless such cessation or threatened cessation is in connection with a merger, consolidation or other form of combination in connection with the establishment of New Holdco which is not a Change of Control; or


		
	(l)
	Governmental intervention: all or a material part of the assets, rights or revenues of, or shares or other ownership interests in, any of the Obligors are seized, nationalised, expropriated or compulsorily acquired by or under the authority of any government; or


		
	(m)
	Minimum share capital requirements: any Italian Obligor falls in the situations set out in Article 2447 or 2482-ter of the Italian Civil Code, unless the minimum share capital required by law is restored within 60 days from the loss of share capital having occurred.


		
	16.2
	Acceleration


		
	(a)
	If a Default described in Clause 16.1(j)(ii), (iii) or (iv) (United States of America Bankruptcy Laws) occurs, the relevant U.S. Debtor shall not be entitled to draw any Advances under this Agreement and all amounts outstanding under the Financing Documents from that U.S. Debtor will be immediately and automatically due and payable.


		
	(b)
	If a Default (other than a Default described in paragraph (a) above) occurs and remains unremedied the Facility Agent may, and shall if so instructed by the Majority Banks, by notice to the Obligors' Agent:


		
	(i)
	cancel the Facilities and require all relevant Borrowers immediately to repay the Advances together with accrued interest and all other sums payable under this Agreement, whereupon they shall become immediately due and payable; or


		
	(ii)
	place the Facilities on demand, whereupon the Advances together with accrued interest and all other sums payable under this Agreement shall become repayable on demand made by the Facility Agent on the instructions of the Majority Banks.


Upon the service of any such notice by the Facility Agent the Commitment of each Bank shall be cancelled.
		
	17.
	PRO RATA SHARING


		
	17.1
	Redistribution


If any amount owing by an Obligor under this Agreement to a Bank (the Sharing Bank) is discharged by voluntary or involuntary payment, set-off or any other manner other than through the Facility Agent in accordance with Clause 11 (Payments), then:
		
	(a)
	the Sharing Bank shall immediately notify the Facility Agent of the amount discharged and the manner of its receipt or recovery;



67








		
	(b)
	the Facility Agent shall determine whether the amount discharged is in excess of the amount which the Sharing Bank would have received had the amount discharged been received by the Facility Agent and distributed in accordance with Clause 11 (Payments);


		
	(c)
	the Sharing Bank shall pay the Facility Agent an amount equal to that excess (the Excess Amount) within five Business Days of demand by the Facility Agent;


		
	(d)
	the Facility Agent shall treat the Excess Amount as if it were a payment by such Obligor under Clause 11 (Payments) and shall pay the Excess Amount to the Banks (other than the Sharing Bank) in accordance with Clause 11.8 (Partial Payments); and


		
	(e)
	as between such Obligor and the Sharing Bank, the Excess Amount shall be treated as not having been received or recovered, and accordingly such Obligor shall owe the Sharing Bank an immediately payable debt equal to the Excess Amount.


		
	17.2
	Legal Proceedings


Notwithstanding Clause 17.1 (Redistribution), no Sharing Bank shall be obliged to share any Excess Amount which it receives or recovers pursuant to legal proceedings taken by it to recover any sums owing to it under this Agreement with any other Bank which has a legal right to, but does not, either join in such proceedings or commence and diligently pursue separate proceedings to enforce its rights, unless the proceedings instituted by the Sharing Bank are instituted by it without prior notice having been given to such Bank through the Facility Agent and an opportunity to such Bank to join in such proceedings.
		
	17.3
	Reversal of Redistribution


If any Excess Amount subsequently has to be wholly or partly refunded to an Obligor by a Sharing Bank which has paid an amount equal to that Excess Amount to the Facility Agent under Clause 17.1 (Redistribution), each Bank to which any part of that amount was distributed shall on request from the Sharing Bank repay to the Sharing Bank that Bank's proportionate share of the amount which has to be so refunded by the Sharing Bank.
		
	17.4
	Information


Each Bank shall on request supply to the Facility Agent such information as the Facility Agent may from time to time request for the purpose of this Clause 17.
		
	18.
	THE FACILITY AGENT, THE ARRANGERS AND THE BANKS


		
	18.1
	Appointment and Duties


		
	(a)
	Each Bank irrevocably appoints the Facility Agent to act as its agent in connection with this Agreement and irrevocably authorises the Facility Agent on its behalf to perform the duties and to exercise the rights, powers and discretions that are specifically delegated to it under or in connection with this Agreement together with any other incidental rights, powers and discretions, provided that the Facility Agent may not commence any legal proceedings on behalf of any Bank without such Bank's prior written consent.


		
	(b)
	For the purpose of acting as their Facility Agent, in accordance with this Clause 18.1, each other Bank exempts the Facility Agent, to the extent legally possible, from any restrictions on multi-representation (Mehrfachvertretung) and self-dealing (Insichgeschäft) stipulated by Section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and any equivalent restriction under any other applicable law in this respect.


		
	(c)
	The Facility Agent shall have no duties or responsibilities except those expressly set out in this Agreement.  As to any matters not expressly provided for, the Facility Agent shall act or refrain from acting in accordance with the instructions of the Majority Banks (but in the absence of any such instructions shall not be obliged to act or refrain from acting).  Any such instructions, and any action taken by the Facility Agent in accordance with those instructions, shall be binding upon all the Banks.



68








		
	(d)
	Unless a contrary indication appears in a Financing Document, the Facility Agent shall 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 Banks.


		
	(e)
	Unless a contrary indication appears in a Financing Document, the Facility Agent may:


		
	(i)
	act in an agency, trustee, fiduciary or other capacity on behalf of any other banks or financial institutions providing facilities to any Obligor or any associated company of any Obligor, as freely in all respects as if it had not been appointed to act as agent for the Banks under this Agreement and without regard to the effect on the Banks of acting in such capacity; and


		
	(ii)
	subscribe for, hold, be beneficially entitled to or dispose of shares or securities, or options or other rights to and interests in shares or securities in any Obligor or any associated company of any Obligor (in each case, without liability to account).


		
	(f)
	Unless a contrary indication appears in a Financing Document, in the absence of instructions from the Majority Banks, (or, if appropriate, the Banks) the Facility Agent may act (or refrain from taking action) as it reasonably considers to be in the best interest of the Banks.


		
	(g)
	Each division or department of the Facility Agent shall be treated as a separate entity from any other division or department of the Facility Agent.  If any of the Facility Agent's divisions or departments should act for any Obligor in any capacity (whether as bankers or otherwise) in relation to any other matter, any information given by that Obligor to any such division or department may be treated as confidential and the Facility Agent shall, as between itself and the Banks, not be obliged to disclose the same to any Bank or any other person.


		
	(h)
	It is acknowledged that the role of the Arrangers is and has been confined solely to arranging the Facilities and that in such capacity they shall have no obligations and liabilities in relation to this Agreement.


		
	(i)
	Nothing in this Agreement constitutes the Facility Agent or any Arranger as a trustee or fiduciary of any other person.


		
	18.2
	Payments


		
	(a)
	The Facility Agent shall promptly account to the Lending Office of each Bank for such Bank's due proportion of all sums received by the Facility Agent for such Bank's account, whether by way of repayment or prepayment of principal or payment of interest, fees or otherwise.


		
	(b)
	The Facility Agent shall maintain a memorandum account showing the principal amount of each Advance outstanding under this Agreement and the amount of each Bank's Participation in the Advances.


		
	18.3
	Rights and discretions of the Facility Agent


		
	(a)
	The Facility Agent shall not be obliged to monitor or enquire as to whether or not a Default or Potential Default has occurred.  The Facility Agent shall be entitled to assume that no Default or Potential Default has occurred unless it receives notice to the contrary from an Obligor or the Obligors' Agent or any Bank describing the Default or Potential Default and stating that such notice is a Default Notice or unless it is aware of a payment default under this Agreement, in which case it shall promptly notify each Bank.


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


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


		
	(ii)
	any notice or request made by the Company (other than a Drawdown Notice or Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.


		
	(c)
	The Facility Agent may assume that:



69








		
	(i)
	any instructions received by it from the Majority Banks, any Banks or any group of Banks are duly given in accordance with the terms of the Financing Documents; and


		
	(ii)
	unless it has received notice of revocation, that those instructions have not been revoked.


		
	(d)
	The Facility Agent may act in relation to the Financing Documents through its officers, employees and agents.


		
	(e)
	Unless a Financing Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.


		
	(f)
	Notwithstanding any provision of any Financing Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. 


		
	18.4
	Reliance


		
	(a)
	The Facility Agent may:


		
	(i)
	rely on: 


		
	(A)
	any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised without independent verification or investigation; and


		
	(B)
	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; and


		
	(ii)
	engage, pay for and rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party given in connection with this Agreement or any of the matters contemplated by this Agreement) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying,


and shall not be liable to any Party for any of the consequences of such reliance except in case of gross negligence or wilful misconduct.
		
	(b)
	Without prejudice to the generality of paragraph (a)(ii) above, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Banks) if the Facility Agent in its reasonable opinion deems this to be necessary.


		
	18.5
	Legal Proceedings


		
	(a)
	The Facility Agent shall not be obliged to take or commence any legal action or proceeding against any Obligor or any other person arising out of or in connection with this Agreement until it shall have been indemnified or secured to its satisfaction against all costs, claims and expenses (including any costs award which may be made against it as a result of any such legal action or proceeding not being successful) which it may expend or incur in such legal action or proceeding.


		
	(b)
	Notwithstanding any other provision of any Financing Document to the contrary, the Facility Agent may refrain from doing anything which might in its opinion constitute a breach of any law, any directive or regulation of any agency of any such state or jurisdiction, any duty of secrecy or confidentiality or be otherwise actionable at the suit of any person.



70








		
	18.6
	No Liability


		
	(a)
	Neither the Facility Agent nor any of their officers, employees or agents shall be liable for any action taken or not taken by it or any of them under or in connection with this Agreement unless directly caused by its or their gross negligence or wilful misconduct.


		
	(b)
	No Finance Party (other than the Facility Agent) may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Financing Document and any officer, employee or agent of the Facility Agent may rely on this Clause 18.6 subject to Clause ý1.4 (Third Party Rights) and the provisions of the Third Parties Act.


		
	(c)
	Neither the Facility Agent nor any of the Arrangers shall be responsible for any statements, representations or warranties in this Agreement or for any information supplied or provided to any Bank by the Facility Agent or any Arranger in respect of any Obligor or any other person or for any other matter relating to this Agreement or for the execution, genuineness, validity, legality, enforceability or sufficiency of this Agreement or any other document referred to in this Agreement or for the recoverability of any Advance or any other sum to become due and payable under this Agreement.


		
	(d)
	The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Financing Documents to be paid by the Facility Agent if the Facility 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 Facility Agent for that purpose and (in each case) the Facility Agent is otherwise in compliance with its obligations under the Financing Documents and under the regulations and operating procedures of that recognised clearing or settlement system.


		
	(e)
	Nothing in this Agreement shall oblige the Facility Agent or any Arranger to carry out or be responsible for any "know your customer" or other checks in relation to any person on behalf of any Bank or any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Bank and each Bank confirms to the Facility Agent and each Arranger 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 Facility Agent or any Arranger.


		
	(f)
	Without limiting paragraph (g) below (and without prejudice to any other provision of any Financing Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of:


		
	(i)
	any act, event or circumstance not reasonably within its control; or 


		
	(ii)
	the general risks of investment in, or the holding of assets in, any jurisdiction,


including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.
		
	(g)
	Without prejudice to any provision of any Financing Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Financing Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss.  In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, 



71








business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages.
		
	18.7
	Credit Decisions


		
	(a)
	Each Bank:


		
	(i)
	acknowledges that it has, independently and without reliance on the Facility Agent or any Arranger, made its own analysis of the transaction contemplated by, and reached its own decision to enter into, this Agreement and made its own investigation of the financial condition and affairs and its own appraisal of the creditworthiness of each Obligor; and


		
	(ii)
	agrees that it shall continue to make its own independent appraisal of the creditworthiness of each Obligor.


		
	(b)
	Each Bank agrees that it shall, independently and without reliance on the Facility Agent or any Arranger, make its own decision to take or not take action under this Agreement.


		
	(c)
	Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Financing Document, each Bank confirms to the Facility Agent and each Arranger 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 Financing Document including but not limited to:


		
	(i)
	the financial condition, status and nature of each member of the Group;


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


		
	(iii)
	whether that Bank 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 Financing Document, the transactions contemplated by the Financing Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Financing Document; and


		
	(iv)
	the adequacy, accuracy and/or completeness of the Information Package and any other information provided by the Facility Agent, any Party or by any other person under or in connection with any Financing Document, the transactions contemplated by the Financing Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Financing Document.


		
	18.8
	Reference Banks


If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of which it is an affiliate) ceases to be a Bank, the Facility Agent shall (in consultation with the Company) appoint another Bank or an affiliate of a Bank to replace that Reference Bank.
		
	18.9
	Deduction from amounts payable by the Facility Agent


If any Party owes an amount to the Facility Agent under the Financing Documents the Facility Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Financing Documents and apply the amount deducted in or towards satisfaction of the amount owed.  For the purposes of the Financing Documents that Party shall be regarded as having received any amount so deducted.
		
	18.10
	Information


		
	(a)
	The Facility Agent shall provide the Banks with all information and copies of all notices which are given to it and which by the terms of this Agreement are to be provided or given to the Banks.



72








		
	(b)
	Except as specifically provided in this Agreement, the Facility Agent shall not be under any duty or obligation:


		
	(i)
	either initially or on a continuing basis, to provide any Bank with any credit information or other information with respect to the financial condition of an Obligor or which is otherwise relevant to the Facilities; or


		
	(ii)
	to request or obtain any certificate, document or information from an Obligor unless specifically requested to do so by a Bank in accordance with this Agreement.


		
	(c)
	Each Bank must promptly on the request of the Facility Agent supply to the Facility Agent any documentation or other evidence which is reasonably required by the Facility Agent to carry out and be satisfied with the results of all know your customer requirements.  The Facility Agent shall promptly notify the Obligors’ Agent upon satisfaction with the results of any know your customer requirements with respect to each Accordion Bank.


		
	18.11
	Duties of the Facility Agent


		
	(a)
	Subject to paragraph (b) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.


		
	(b)
	Paragraph (a) above shall not apply to any Transfer Certificate or to any assignment agreement pursuant to Clause 23.3 (Assignments by Banks) or to any Increase Confirmation pursuant to Clause 2.2 (Defaulting Bank/Illegality Increase), each of which may be delivered to any Party (other than to any Obligor).


		
	(c)
	Except where a Financing Document specifically provides otherwise, the Facility Agent is not obliged to review or check the contents or the adequacy of any document it forwards to another Party.


		
	(d)
	If the Facility 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 Finance Parties.


		
	(e)
	If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent or an Arranger) under and in accordance with this Agreement it shall promptly notify the other Finance Parties.


		
	(f)
	The Facility Agent's duties under the Financing Documents are solely mechanical and administrative in nature.


		
	18.12
	Relationship with the Banks


		
	(a)
	Subject to Clause ý23.13 (Pro Rata Interest Settlement), the Facility Agent may treat the person shown in its records as Bank at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Bank acting through its Lending Office:


		
	(i)
	entitled to or liable for any payment due under any Financing Document on that day; and


		
	(ii)
	entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Financing Document made or delivered on that day,


unless it has received not less than five Business Days' prior notice from that Bank to the contrary in accordance with the terms of this Agreement.
		
	(b)
	Any Bank may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Bank under the Financing Documents.  Such notice shall contain the address, fax number and electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer by that Bank for the purposes of Clause ý22.3 (Addresses) and the Facility Agent shall be entitled to treat such person as the person 



73








entitled to receive all such notices, communications, information and documents as though that person were that Bank.
		
	(c)
	In performing its functions and duties under this Agreement, the Facility Agent shall act solely as the agent for the Banks and except as expressly provided in this Agreement shall not be deemed to be acting as trustee for any Bank and shall not assume or be deemed to have assumed any obligation as agent or trustee for, or any relationship of agency or trust with, any Obligor.


		
	(d)
	None of the Facility Agent, the Arrangers or any Bank shall be under any liability or responsibility of any kind to any Obligor or any other Bank arising out of or in relation to any failure or delay in performance or breach by any Obligor or any other Bank of any of its or their respective obligations under this Agreement.


		
	18.13
	Instructions


		
	(a)
	The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Banks (or, if the relevant Financing Document stipulates the matter is a decision for any other Bank or group of Banks, from that Bank or group of Banks) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion.  The Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.


		
	(b)
	Save in the case of decisions stipulated to be a matter for any other Bank or group of Banks under the relevant Financing Document and unless a contrary indication appears in a Financing Document, any instructions given to the Facility Agent by the Majority Banks shall override any conflicting instructions given by any other Finance Parties and will be binding on all Finance Parties.


		
	(c)
	The Facility Agent may refrain from acting in accordance with any instructions of any Bank or group of Banks until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Financing Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions. 


		
	18.14
	Facility Agent's Position


		
	(a)
	With respect to its own Participation in an Advance (if any), the Facility Agent shall have the same rights and powers under and in respect of this Agreement as any other Bank and may exercise those rights and powers as though it were not also acting as agent for the Banks.  The Facility Agent may, without liability to account, accept deposits from, lend money to and generally engage in any kind of banking, finance, advisory, trust or other business with or for any Obligor as if it were not the agent for the Banks under this Agreement.


		
	(b)
	The Facility Agent may retain for its own use and benefit (and shall not be liable to account to any Bank for all or any part of) any sums received by it by way of agency or management or arrangement or upfront fees or by way of reimbursement of expenses incurred by it.


		
	18.15
	Indemnity


Each Bank shall immediately on demand indemnify the Facility Agent (to the extent not reimbursed by the Obligors) rateably according to the proportion which that Bank's Commitment bears to the Total Commitments from and against all liabilities, losses and expenses of any kind or nature whatsoever which may be incurred by the Facility Agent in its capacity as agent or trustee for the Banks or in any way relating to or arising out of this Agreement or any action taken or omitted by the Facility Agent in enforcing or preserving the rights of the Banks or the Facility Agent under this Agreement, provided that no Bank shall be liable for any portion of such liabilities, losses or expenses resulting from the Facility Agent's gross negligence or wilful misconduct.
		
	18.16
	Resignation


		
	(a)
	The Facility Agent may resign by giving at least 30 days' notice to the Obligors' Agent and each Bank.  Upon receipt of a notice of resignation the Obligors' Agent and the Majority Banks may select any bank or other financial institution as a successor Facility Agent.



74








		
	(b)
	If no bank or other financial institution selected by the Obligors' Agent and the Majority Banks shall have accepted such appointment within 20 days after the Facility Agent has given a notice of resignation then the Majority Banks may, after consultation with the Obligors' Agent, appoint any bank or other financial institution as successor Facility Agent.


		
	(c)
	If no bank or other financial institution selected by the Majority Banks shall have accepted such appointment within 30 days after the Facility Agent has given a notice of resignation then the resigning Facility Agent may, after consultation with the Obligors' Agent, appoint any bank or other financial institution of reputable standing with an office in London as successor Facility Agent.


		
	(d)
	The resignation of the Facility Agent and the appointment of any successor Facility Agent shall both become effective only upon the successor Facility Agent notifying the retiring Facility Agent, the Obligors' Agent and each Bank that it accepts its appointment.  On such notification:


		
	(i)
	the resigning Facility Agent shall be discharged from its obligations and duties as Facility Agent under this Agreement but it shall continue to be able to rely on the provisions of this Clause 18 in respect of all matters relating to the period of its appointment; and


		
	(ii)
	the successor Facility Agent shall assume the role of Facility Agent and shall have all the rights, powers, discretions and duties which the Facility Agent has under this Agreement.


		
	(e)
	The resigning Facility Agent shall, at its own cost, make available to the successor Facility Agent all records and documents held by it as Facility Agent, and shall co-operate with the successor Facility Agent to ensure an orderly transition.


		
	(f)
	The Facility Agent shall resign in accordance with paragraph (a) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent) if on or after the date which is 60 days before the earliest FATCA Application Date relating to any payment to the Facility Agent under this Agreement, either:


		
	(i)
	the Facility Agent fails to respond to a request under Clause 11.12 (FATCA Information) and a Bank reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;


		
	(ii)
	the information supplied by the Facility Agent pursuant to Clause 11.12 (FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or


		
	(iii)
	the Facility Agent notifies the Company and the Banks that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;


and (in each case) a Bank reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and that Bank, by notice to the Facility Agent, requires it to resign.
		
	18.17
	Removal of the Facility Agent


The Majority Banks may remove the Facility Agent from its role as the Facility Agent under this Agreement by giving notice to that effect to each Party.  Upon delivery of such notice, the Facility Agent shall be deemed to have given notice of resignation pursuant to Clause 18.16(a) (Resignation) and the provisions of Clause 18.16 (Resignation) shall apply to such deemed notice.
		
	18.18
	Change of Office


The Facility Agent may at any time in its sole discretion by notice to the Obligors' Agent and each Bank designate a different office in the United Kingdom from which its duties as the Facility Agent will be performed.

75








		
	18.19
	Role of Reference Banks


		
	(a)
	No Reference Bank is under any obligation to provide a quotation or any other information to the Facility Agent. 


		
	(b)
	No Reference Bank will be liable for any action taken by it under or in connection with any Financing Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct. 


		
	(c)
	No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Financing Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank may rely on this Clause 18.19 subject to Clause 1.4 (Third Party Rights) and the provisions of the Third Parties Act.


		
	18.20
	Third Party Reference Banks


A Reference Bank which is not a Party may rely on Clause 18.19 (Role of Reference Banks), Clause 20.3 (Other exceptions) and Clause 24 (Confidentiality of Funding Rates and Reference Bank Quotations) subject to Clause 1.4 (Third Party Rights) and the provisions of the Third Parties Act.
		
	19.
	FEES AND EXPENSES


		
	19.1
	Expenses and Costs


Subject to any limits on and other matters relating to the same that may previously have been agreed by the Arrangers prior to the Signing Date, the Obligors' Agent shall reimburse all reasonable expenses incurred, and any VAT on those expenses (save to the extent recoverable by the person or any affiliate incurring the expense as an input):
		
	(a)
	by each of the Arrangers and the Facility Agent in connection with the negotiation, preparation and execution of the Financing Documents and the other documents contemplated by the Financing Documents;


		
	(b)
	by each of the Arrangers and the Facility Agent in respect of the syndication of the Facilities;


		
	(c)
	by the Facility Agent and the Banks in connection with the granting of any release, waiver or consent or in connection with any amendment or variation of any Financing Document where such release, waiver, consent, amendment or variation has been requested by the Obligors' Agent; and


		
	(d)
	by the Facility Agent and the Banks in enforcing, perfecting, protecting or preserving (or attempting so to do) any of their rights, or in suing for or recovering any sum due from any Obligor or any other person under any Financing Document,


upon presentation of a statement of account reasonably documented for administrative and fiscal purposes.
		
	19.2
	Upfront and Agency Fees


The Obligors’ Agent shall pay to the Arrangers an upfront fee in accordance with the terms of the Upfront Fees Letter and the Obligors' Agent shall pay to the Facility Agent agency fees in accordance with the terms of the Agency Fee Letter.  For the avoidance of doubt, all liabilities and obligations of the Obligors’ Agent under the Upfront Fees Letter and of the Obligors' Agent under the Agency Fee Letter shall be deemed to be incurred under this Agreement.
		
	19.3
	Commitment Fee


		
	(a)
	The Obligor’s Agent shall pay to the Facility Agent (for the account of the Banks participating in a Facility) a commitment fee (the Commitment Fee) in Euros of 35 per cent. of the applicable Margin on any unused and uncancelled Commitments under that Facility.



76








		
	(b)
	The Commitment Fee will accrue from (but excluding) the earlier of the First Drawdown Date and the Separation Date and is payable by the Company quarterly in arrear, on the last day of the Drawdown Period applicable to the relevant Facility, and on the date on which the Commitments under the relevant Facility are cancelled in full. 


		
	19.4
	Ticking Fee


		
	(a)
	The Obligor’s Agent shall pay to the Facility Agent (for the account of the Banks participating in a Facility) a ticking fee (the Ticking Fee) in Euros of 0.20 per cent. per annum on the aggregate principal amount of any unused and uncancelled Commitments under that Facility. 


		
	(b)
	The Ticking Fee will accrue from (and including) the date that is 60 days from the Signing Date until the earlier of the First Drawdown Date and the Separation Date and is payable quarterly in arrear and on the Separation Date. No Ticking Fee will be payable if the First Drawdown Date or the Separation Date occurs on or before the day falling 60 days from the Signing Date.


		
	19.5
	Utilisation Fee


		
	(a)
	The Obligors' Agent shall pay to the Facility Agent for the account of the Banks a utilisation fee in Euros on the Original Euro Amount of all Revolving Facility Advances outstanding from day to day computed at the rates set out below: 


		
	(i)
	0.0875 per cent. per annum in respect of each day that the Original Euro Amount of all Revolving Facility Advances is less than or equal to 331/3 per cent. of the Total Revolving Facility Commitments;


		
	(ii)
	0.175 per cent. per annum in respect of each day that the Original Euro Amount of all Revolving Facility Advances exceeds 331/3 per cent. but is less than or equal to 662/3 per cent. of the Revolving Facility Commitments; and


		
	(iii)
	0.35 per cent. per annum in respect of each day that the Original Euro Amount of all Revolving Facility Advances exceeds 662/3 per cent. of the Total Revolving Facility Commitments.


		
	(b)
	The utilisation fee shall be calculated on the basis of the actual number of days elapsed and a 360 day year and be due quarterly in arrear and on any earlier date on which the Total Revolving Facility Commitments equal zero.  The Obligors' Agent shall pay such utilisation fees within 10 Business Days of receipt of notification of the amount of such utilisation fees from the Facility Agent.


		
	19.6
	Documentary Taxes Indemnity


		
	(a)
	Subject to paragraph (b) below, all stamp, documentary, registration or other like duties or Taxes which are imposed or chargeable on or in connection with any Financing Document or any Increase Confirmation shall be paid by the Obligors' Agent, other than where any such amount becomes due in respect of, or in connection with, a Transfer Certificate.  The Facility Agent shall be entitled but not obliged to pay any such duties or Taxes (whether or not they are its primary responsibility).  If the Facility Agent does so then the Facility Agent shall notify the Obligors' Agent that any such payment has been made and the Obligors' Agent shall on demand indemnify the Facility Agent against those duties and Taxes and against any costs and expenses incurred by the Facility Agent in discharging them. For the avoidance of doubt, the Original Banks and the Borrowers hereby expressly do not opt for the application of the substitutive tax regime set out under Article 17 of the Italian Presidential Decree No. 601 of 29 September 1973.


		
	(b)
	No stamp duty, registration and other like duties or Taxes payable in respect of any Financing Document shall be payable or the subject of an indemnity by the Obligors' Agent in the event, or as result of, a voluntary registration made, by or on behalf of a Bank, of any Financing Document with the relevant tax administration (excluding any voluntary registration made which is necessary for the relevant Bank to enforce, to maintain, to establish or to preserve any of its rights under any Financing Document), in which case such registration duties should be borne by such Bank.



77








		
	19.7
	VAT


		
	(a)
	All amounts expressed to be payable under a Financing Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Financing Document and such Finance Party is required to account to the relevant Taxation authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).


		
	(b)
	If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Financing Document, and any Party other than the Recipient (the Relevant Party) is required by the terms of any Financing Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):


		
	(i)
	(where the Supplier is the person required to account to the relevant Taxation authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT.  The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant Taxation authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and


		
	(ii)
	(where the Recipient is the person required to account to the relevant Taxation authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.


		
	(c)
	Where a Financing Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant Taxation authority.


		
	(d)
	Any reference in this Clause 19.7 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).  


		
	(e)
	In relation to any supply made by a Finance Party to any Party under a Financing Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.



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	20.
	AMENDMENTS AND WAIVERS


		
	20.1
	Majority Banks


		
	(a)
	Subject to Clause 20.2 (All Banks), any term of this Agreement may be amended or waived with the written agreement of the Obligors' Agent and the Majority Banks.  The Facility Agent may effect, on behalf of the Majority Banks and the Obligors' Agent may effect, on behalf of itself and the other Obligors, an amendment or waiver to which the Majority Banks or, as the case may be, the Banks have agreed.


		
	(b)
	The Facility Agent shall promptly notify the Obligors' Agent and each Bank of any amendment or waiver effected under paragraph (a) above and any such amendment or waiver shall be binding on the Obligors and each Bank.


		
	20.2
	All Banks


An amendment or waiver which relates to:
		
	(a)
	the definition of Majority Banks or Margin in Clause 1.1 (Definitions);


		
	(b)
	an extension of the date for, or a decrease in an amount or a change in the currency of, any payment under this Agreement;


		
	(c)
	an increase in a Bank's Commitment;


		
	(d)
	a term of this Agreement which expressly requires the consent of each Bank; or


		
	(e)
	Clauses 2.4 (Obligations Several), 2.5 (Rights Several), 7 (Interest), 8 (Repayment and Prepayment)), 12 (Guarantee), 13.3(a) (Resignation of an Obligor), 17 (Pro Rata Sharing), 19.3 (Commitment Fee), 19.4 (Ticking Fee), 19.5 (Utilisation Fee) and 20 (Amendments and Waivers),


may not be effected without the prior written consent of each Bank.
		
	20.3
	Other exceptions


An amendment or waiver which relates to the rights or obligations of the Facility Agent, an Arranger or a Reference Bank (each in their capacity) may not be effected without the consent of the Facility Agent, that Arranger or that Reference Bank (if such Reference Bank is a Finance Party), as the case may be.
		
	20.4
	No Implied Waivers; Remedies Cumulative


The rights of the Facility Agent and each Bank under this Agreement:
		
	(a)
	may be exercised as often as necessary;


		
	(b)
	are cumulative and not exclusive of its rights under the general law; and


		
	(c)
	may be waived only in writing and specifically.


Delay in exercising or non-exercise of any such right is not a waiver of that right.
		
	20.5
	Replacement of a Bank


		
	(a)
	If at any time:


		
	(i)
	any Bank becomes a Non-Consenting Bank (as defined in paragraph (d) below); or


		
	(ii)
	an Obligor becomes obliged to pay any amount in accordance with Clause 10.1 (Illegality) or to pay additional amounts pursuant to Clause 10.2 (Increased Costs) or Clause 11.10 (Grossing-up) to any 



79








Bank in excess of amounts payable to the other Banks generally, or to pay additional amounts in connection with Basel III or CRD IV only pursuant to Clause 10.2 (Increased Costs) to any Bank,
then the Company may, on 10 Business Days' prior written notice to the Facility Agent and such Bank, replace such Bank by requiring such Bank to (and such Bank shall) transfer pursuant to Clause 23 (Assignments and Transfers) all (and not part only) of its rights and obligations under this Agreement to a Bank or other bank, financial institution, trust, fund or other entity (a Replacement Bank) (each of which shall not be a member of the Group or an affiliate of a member of the Group) selected by the Company, which confirms its willingness to assume and does assume all the obligations of the transferring Bank (including the assumption of the transferring Bank's Participations on the same basis as the transferring Bank) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Bank's Participations and all accrued interest, Breakage Costs and other amounts payable in relation thereto under the Financing Documents.
		
	(b)
	The replacement of a Bank pursuant to this Clause shall be subject to the following conditions:


		
	(i)
	the Company shall have no right to replace the Facility Agent;


		
	(ii)
	neither the Facility Agent nor the Bank shall have any obligation to the Company to find a Replacement Bank;


		
	(iii)
	in the event of a replacement of a Non-Consenting Bank such replacement must take place no later than 30 days after the date the Non-Consenting Bank notifies the Company and the Facility Agent of its failure or refusal to give a consent in relation to, or agree to any waiver or amendment to the Financing Documents requested by the Company;


		
	(iv)
	in no event shall the Bank replaced under this paragraph (b) be required to pay or surrender to such Replacement Bank any of the fees received by such Bank pursuant to the Financing Documents; and


		
	(v)
	the Bank shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer, the completion of which the Bank or the Facility Agent shall promptly notify the Company.


		
	(c)
	A Bank shall perform the checks described in paragraph (b)(v) above, acting reasonably and diligently, as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above (and, in any event, within five Business Days of receipt by the relevant Bank of the documents or evidence necessary to perform the checks described in paragraph (b)(v) above) and shall notify the Facility Agent and the Company when it is satisfied that it has complied with those checks.


		
	(d)
	In the event that:


		
	(i)
	the Company or the Facility Agent (at the request of the Company) has requested the Banks to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Financing Documents;


		
	(ii)
	the consent, waiver or amendment in question requires the approval of all the Banks; and


		
	(iii)
	Banks 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 prior to that reduction) have consented or agreed to such waiver or amendment,


then any Bank who does not and continues not to consent or agree to such waiver or amendment shall be deemed a Non-Consenting Bank.
		
	(e)
	For the purposes of this Clause, Basel III means:


		
	(i)
	the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: 



80








International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
		
	(ii)
	the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and


		
	(iii)
	any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".


		
	20.6
	Disenfranchisement of Defaulting Banks


		
	(a)
	For so long as a Defaulting Bank has any Commitment, in ascertaining the Majority Banks or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Participations or the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Financing Documents, that Defaulting Bank's Participations and Commitments will be reduced by the amount of its Participations and Commitments (as appropriate).


		
	(b)
	For the purposes of this Clause, the Facility Agent may assume that the following Banks are Defaulting Banks:


		
	(i)
	any Bank which has notified the Facility Agent that it has become a Defaulting Bank;


		
	(ii)
	any Bank in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Bank has occurred,


unless it has received notice to the contrary from the Bank concerned (together with any supporting evidence reasonably requested by the Facility Agent) or the Facility Agent is otherwise aware that the Bank has ceased to be a Defaulting Bank.
		
	20.7
	Replacement of a Defaulting Bank


		
	(a)
	The Company may, at any time a Bank has become and continues to be a Defaulting Bank, by giving 10 Business Days' prior written notice to the Facility Agent and such Bank:


		
	(i)
	replace such Bank by requiring such Bank to (and such Bank shall) transfer pursuant to Clause 23 (Assignments and Transfers) all (and not part only) of its rights and obligations under this Agreement;


		
	(ii)
	require such Bank to (and such Bank shall) transfer pursuant to Clause 23 (Assignments and Transfers) all (and not part only) of the undrawn Commitment of the Bank; or


		
	(iii)
	require such Bank to (and such Bank shall) transfer pursuant to Clause 23 (Assignments and Transfers) all (and not part only) of its rights and obligations in respect of the Facilities,


to a Bank or other bank, financial institution, trust, fund or other entity (a Replacement Bank) selected by the Company (each of which shall not be a member of the Group or an affiliate of a member of the Group), and which (unless the Facility Agent is an Impaired Facility Agent) is acceptable to the Facility Agent (acting reasonably), which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Bank (including the assumption of the transferring Bank's Participations or unfunded Participations (as the case may be) on the same basis as the transferring Bank) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Bank's Participation in the outstanding Advances and all accrued interest, Breakage Costs and other amounts payable in relation thereto under the Financing Documents.
		
	(b)
	Any transfer of rights and obligations of a Defaulting Bank pursuant to this Clause shall be subject to the following conditions:


		
	(i)
	the Company shall have no right to replace the Facility Agent;



81








		
	(ii)
	neither the Facility Agent nor the Defaulting Bank shall have any obligation to the Company to find a Replacement Bank;


		
	(iii)
	the transfer must take place no later than 30 days after the notice referred to in paragraph (a) above; and


		
	(iv)
	in no event shall the Defaulting Bank be required to pay or surrender to the Replacement Bank any of the fees received by the Defaulting Bank pursuant to the Financing Documents.


		
	20.8
	Excluded Commitments


If any Bank (including for the avoidance of doubt any Defaulting Bank) fails to respond to a request by or on behalf of the Obligors’ Agent for a consent, waiver, amendment of or in relation to any term of any Financing Document under the terms of this Agreement within 10 Business Days of that request being made (unless the Company and the Facility Agent agree to a longer time period in relation to any request):
		
	(a)
	its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility/ies when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments has been obtained to approve that request; and


		
	(b)
	its status as a Bank shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Banks has been obtained to approve that request.


		
	21.
	MISCELLANEOUS


		
	21.1
	Severance


If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:
		
	a.
	the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or


		
	b.
	the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.


		
	21.2
	Counterparts


This Agreement may be executed in any number of counterparts and this shall have the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
		
	22.
	NOTICES


		
	22.1
	Method


		
	(a)
	Each notice or other communication to be given under this Agreement shall be given in writing in English and, unless otherwise provided, shall be made by fax, letter or, to the extent that the relevant Party has specified such address, by e-mail, and in the case of the notification of rates of interest by the Facility Agent pursuant to Clause 7.12 (Calculation and Payment of Interest) and in the case of the delivery of any document by the Company pursuant to Clause 15.1 (Information Undertakings) or by the Facility Agent pursuant to Clause 18.10(a) (Information), the Company or, as the case may be, the Facility Agent may refer the relevant Party or Parties (by fax or letter (or if so specified) e-mail) to a web site and to the location of the relevant information on such web site in discharge of such notification or delivery obligation provided that:


		
	(i)
	in relation to the notification of rates of interest pursuant to Clause 7.12 (Calculation and Payment of Interest), if any Party notifies the Facility Agent that it is unable to access such website the Facility Agent will promptly notify that Party of the relevant interest rate using an alternative method of communication permitted under this Clause 22; and



82








		
	(ii)
	in relation to the delivery of any document by an Obligor pursuant to Clause 15.1 (Information Undertakings), if the Facility Agent notifies that Obligor that a Bank or Banks are unable to access that Obligor's official website, that Obligor shall promptly supply to the Facility Agent sufficient copies of such documents for such Banks.


		
	(b)
	Subject to paragraph (a) above, an Obligor may fulfil any of its obligations (other than under paragraph (g) of Clause 15.1 (Information Undertakings) to deliver copies of a document to the Facility Agent in sufficient copies for all the Banks by notifying the Facility Agent that such document is available on its official website.


		
	22.2
	Delivery


Any notice or other communication to be given by one Party to another under this Agreement shall (unless one Party has by 15 days' notice to the other Party specified another address) be given to that other Party, in the case of the Obligors' Agent and the Facility Agent, at the respective addresses given in Clause 22.3 (Addresses), and in the case of the Banks, at the address notified in writing to the Facility Agent prior to or on the Signing Date or, as the case may be, the schedule to its relevant Transfer Certificate.  Any notice or communication given to the Obligors' Agent shall be deemed to have been given to each of the Obligors.  Any communication or document which becomes effective, in accordance with this Clause 22, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day. 
		
	22.3
	Addresses


The address, fax number and, if so specified, email address of the Obligors' Agent and the Facility Agent are: 
		
	(a)
	the Obligors' Agent:


Ferrari N.V.
Via Abetone Inferiore N.4
I-41053 Maranello
Italy
Attention: CFO / General Counsel
Fax: (+39) 0536-949.745
		
	(b)
	the Facility Agent:


Bank of America Merrill Lynch International Limited
26 Elmfield Road
Bromley, Kent, BR1 1LR
Attention:     Loans Agency
Fax:         44 (0) 208 313 2149
Email:         Emea.7115LoansAgency@bankofamerica.com


		
	22.4
	Deemed Receipt


Any notice or other communication given under this Agreement shall be deemed to have been received:
		
	(a)
	if sent by fax, with a confirmed receipt of transmission from the receiving machine, on the day on which transmitted;


		
	(b)
	if sent by email, when received in legible form;


		
	(c)
	in the case of a notice given by hand, on the day of actual delivery; and


		
	(d)
	if posted, on the tenth Business Day following the day on which it was despatched by first class mail postage prepaid or, as the case may be, airmail postage prepaid, 



83








provided that a notice given in accordance with the above but received on a day which is not a Business Day or after normal business hours in the place of receipt shall be deemed to have been received on the next Business Day.
		
	22.5
	Notices through Facility Agent


Any notice or other communication from or to any Obligor under this Agreement shall be sent through the Facility Agent.
		
	22.6
	Communication when Facility Agent is Impaired Facility Agent


If the Facility Agent is an Impaired Facility Agent the Parties may, instead of communicating with each other through the Facility Agent, communicate with each other directly and (while the Facility Agent is an Impaired Facility Agent) all the provisions of the Financing Documents which require communications to be made or notices to be given to or by the Facility Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly.  This provision shall not operate after a replacement Facility Agent has been appointed.
		
	22.7
	English language


		
	(a)
	Any notice given under or in connection with any Financing Document must be in English.


		
	(b)
	All other documents provided under or in connection with any Financing Document must be:


		
	(i)
	in English; or


		
	(ii)
	if not in English, and if so required by the Facility Agent, accompanied by (within a reasonable period of time) an English translation and any failure of any Obligor to provide such English translation within a reasonable period of time under this paragraph (b)(ii) shall not result in a breach of its information or other obligations under this Agreement.


		
	23.
	ASSIGNMENTS AND TRANSFERS


		
	23.1
	Benefit of Agreement


This Agreement shall be binding upon and enure to the benefit of each Party and its successors and assigns.
		
	23.2
	Assignments and Transfers by an Obligor


No Obligor shall be entitled to assign or transfer any of its rights or obligations under this Agreement.
		
	23.3
	Assignments by Banks


Any Bank may, subject to Clause 23.5 (Conditions to Assignments and Transfers), assign any of its rights and benefits under this Agreement to another bank or other financial institution, provided that (i) until the assignee has confirmed to the Facility Agent and the other Banks that it shall be under the same obligations towards each of them as it would have been under if it had been a party to this Agreement as a Bank, the Facility Agent and the other Banks shall not be obliged to recognise the assignee as having the rights against each of them which it would have had if it had been such a party to this Agreement, and (ii) such other bank or other financial institution qualifies as a Professional Lender.
		
	23.4
	Transfers by Banks


		
	(a)
	Any Bank may, subject to Clause 23.5 (Conditions to Assignments and Transfers), transfer, in accordance with this Clause 23.4, any of its rights and obligations under this Agreement.


		
	(b)
	If any Bank (the Existing Bank) wishes to transfer all or any part of its Commitment or Participation in Advances to another bank or other financial institution (the Bank Transferee), such transfer may be effected 



84








by way of a transfer and assumption of all rights by the delivery to, and the execution by, the Facility Agent of a duly completed Transfer Certificate. 
		
	(c)
	On the date specified in the Transfer Certificate:


		
	(i)
	to the extent that in the Transfer Certificate the Existing Bank seeks to transfer its Commitment or Participation in Advances, the Obligors and the Existing Bank shall each be released from further obligations to each other under this Agreement and their respective rights against each other shall be cancelled (such rights and obligations being referred to in this paragraph (c) as Discharged Rights and Obligations);


		
	(ii)
	the Obligors and the Bank Transferee shall each assume obligations towards each other and/or acquire rights against each other which differ from the Discharged Rights and Obligations only insofar as the Obligors and the Bank Transferee have assumed and/or acquired the same in place of the Obligors and the Existing Bank; and


		
	(iii)
	each of the Parties and the Bank Transferee shall acquire the same rights and assume the same obligations among themselves as they would have acquired and assumed had the Bank Transferee been a party under this Agreement as a Bank with the rights and/or the obligations acquired and/or assumed by it as a result of the transfer.


		
	(d)
	The Facility Agent shall promptly complete a Transfer Certificate on request by an Existing Bank and upon payment by the Bank Transferee of a fee of €3,000 to the Facility Agent.  Each Party irrevocably authorises the Facility Agent to execute any duly completed Transfer Certificate on its behalf, provided that such authorisation does not extend to the execution of a Transfer Certificate on behalf of either the Existing Bank or the Bank Transferee named in the Transfer Certificate.


		
	(e)
	The Facility Agent shall promptly notify the Obligors' Agent of the receipt and execution on its behalf by the Facility Agent of any Transfer Certificate.


		
	23.5
	Conditions to Assignments and Transfers


		
	(a)
	Unless the Obligors' Agent and the Facility Agent otherwise agree, an assignment or transfer by a Bank shall be in respect of a Commitment of at least €10,000,000 (or, if a Bank’s Commitment is less than €10,000,000, an amount equal to that Bank’s Commitment).


		
	(b)
	An assignment or transfer of any Commitment or Participation in the Advances (other than (i) any such assignment or transfer to a Bank or to an affiliate of a Bank which is not a fund or (ii) while a Default which is outstanding) shall be subject to the prior approval of the Obligors' Agent (such approval not to be unreasonably withheld or delayed except in the case of an assignment or transfer to an Industry Competitor).  The consent of the Obligors' Agent to an assignment or transfer shall be deemed to have been given unless an express written refusal is received by the Facility Agent within 5 Business Days of the request being made to the Obligors' Agent in which it should be clearly stated that the Facility Agent is requiring the consent to an assignment or transfer of any Commitment or Participation in the Advances.


		
	(c)
	Unless the Obligors’ Agent otherwise agrees, each assignment or transfer of any Commitment or Participation in the Advances must be made such that the same proportion of the transferring Bank’s Commitments and Participations in each Facility are transferred to the transferee Bank (or affiliate of the transferee Bank).


		
	(d)
	No assignment or transfer of any Participation may be made by a Bank (or a Designated Entity) unless a corresponding assignment or transfer of that Bank’s (or the relevant Related Lender’s) Commitment (in an amount equal to the Original Euro Amount of the Participation) is made at the same time to the relevant Bank Transferee.


		
	(e)
	An assignment or transfer of any Commitment or Participation in the Advances will only be effective upon performance by the Facility Agent of all necessary "know your customer" or other similar checks under all 



85








applicable laws and regulations in relation to such assignment or transfer to the Bank Transferee, the completion of which the Facility Agent shall promptly notify to the Existing Bank and the Bank Transferee. 
		
	(f)
	On the date the assignment or transfer becomes effective the Bank Transferee must make the representation on the terms set out in paragraph (d) of the Transfer Certificate.


		
	(g)
	The Facility Agent shall make a corresponding entry in the Register pursuant to Clause 23.11 (The Register).


		
	(h)
	If:


		
	(i)
	a Bank assigns or transfers any of its rights or obligations under the Financing Documents to a Bank Transferee (including, without limitation, to an affiliate of such Bank); or


		
	(ii)
	a Bank changes any Lending Office or designates a Designated Entity as its Lending Office instead of the Lending Office it selected on the date it became a Party for the purpose of participating in the Facilities,


and as a result of circumstances existing at the date the assignment, transfer, change of Lending Office or designation of Designated Entity occurs, a Borrower would be obliged to make a payment to the Bank Transferee, to the Bank acting through its new Lending Office or to the Designated Entity pursuant to Clause 10.2 (Increased Costs) or Clause 11.10 (Grossing-up), then that Bank Transferee, Bank or Designated Entity acting through its new Lending Office shall only be entitled to receive payment under Clause 10.2 (Increased Costs) or, as the case may be, Clause 11.10 (Grossing-up) to the same extent as the Existing Bank or the Bank acting through its original Lending Office would have been so entitled if the assignment, transfer, change of Lending Office or designation of Designated Entity had not occurred.
		
	(i)
	In this Clause 23.5, Industry Competitor means any person (or an affiliate of any person) whose primary business is any of the design, manufacture or sale of automobiles, the luxury business or the use and exploitation of intellectual property rights.


		
	23.6
	Limitation of responsibility of Existing Banks


		
	(a)
	Unless expressly agreed to the contrary, an Existing Bank makes no representation or warranty and assumes no responsibility to a Bank Transferee for:


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


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


and any representations or warranties implied by law are excluded.
		
	(b)
	Each Bank Transferee confirms to the Existing Bank 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 Bank in connection with any Financing 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 Financing Documents or any Commitment is in force.



86








		
	(c)
	Nothing in any Financing Document obliges an Existing Bank to:


		
	(i)
	accept a re-transfer or re-assignment from a Bank Transferee 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 Bank Transferee by reason of the non-performance by any Obligor of its obligations under the Financing Documents or otherwise.


		
	23.7
	Consequences of Transfer


An Obligor shall be under no obligation to pay any greater amount under this Agreement following an assignment or transfer by a Bank of any of its rights or obligations pursuant to this Clause 23 if, in the circumstances existing at the time of such assignment or transfer, such greater amount would not have been payable but for the assignment or transfer.
		
	23.8
	Confidentiality


		
	(a)
	Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 23.9 (Disclosure of Confidential Information) and Clause ý23.10 (Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.


		
	(b)
	The Company may disclose a copy or an extract of any Financing Document or any information in relation to the Financing Document (i) on a confidential basis to its board members, to the employees, financial and legal advisers of the Company and/or the Company's Subsidiaries, in each case, who have a need to know this information and who are made aware of the contents of this paragraph prior to such information being disclosed to them; (ii) as required under any applicable law or regulation; (iii) to rating agencies; (iv) to Borsa Italiana and/or CONSOB, the U.S. Securities and Exchange Commission, or any other applicable stock exchange or securities regulatory authority; and (v) to whom it deems appropriate.


		
	23.9
	Disclosure of Confidential Information


Any Finance Party may disclose:
		
	(a)
	to any of its affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;


		
	(b)
	to any person:


		
	(i)
	to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Financing Documents and to any of that person's affiliates, Related Funds, Representatives and professional advisers;


		
	(ii)
	with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Financing Documents and/or one or more Obligors and to any of that person's affiliates, Related Funds, Representatives and professional advisers;



87








		
	(iii)
	appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Financing Documents on its behalf; 


		
	(iv)
	who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;


		
	(v)
	to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;


		
	(vi)
	to whom or for whose benefit that Finance Party charges, assigns or otherwise creates security (or may do so) pursuant to Clause 23.12ý (Encumbrance over Banks' rights); 


		
	(vii)
	to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;


		
	(viii)
	who is a Party; or


		
	(ix)
	with the consent of the Company;


in each case, such Confidential Information as that Finance Party shall consider appropriate if:
		
	(A)
	in relation to paragraphs (b)(i), (b)(ii) above and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;


		
	(B)
	in relation to paragraph (b)(vi) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;


		
	(C)
	in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;


		
	(c)
	to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Financing Documents including without limitation, in relation to the trading of participations in respect of the Financing Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party; and 


		
	(d)
	to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Financing Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.



88








		
	23.10
	Disclosure to numbering service providers


		
	(a)
	Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facilities and/or one or more Obligors the following information:


		
	(i)
	names of the Obligors;


		
	(ii)
	country of domicile of the Obligors;


		
	(iii)
	place of incorporation of the Obligors;


		
	(iv)
	date of this Agreement;


		
	(v)
	the names of the Facility Agent and the Arrangers;


		
	(vi)
	amount of Total Commitments;


		
	(vii)
	currencies of the Facilities;


		
	(viii)
	type of Facilities;


		
	(ix)
	ranking of Facilities;


		
	(x)
	Termination Date; and


		
	(xi)
	such other information agreed between such Finance Party and the Company,


to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
		
	(b)
	The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.


		
	(c)
	Each Obligor represents that none of the information set out in sub-paragraphs (i) to (xi) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.


		
	(d)
	The Facility Agent shall notify the Company and the other Finance Parties of:


		
	(i)
	the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facilities and/or one or more Obligors; and


		
	(ii)
	the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Obligors by such numbering service provider.


		
	23.11
	The Register


For U.S. federal income tax purposes only, the Facility Agent, acting solely for this purpose as an agent of the Obligors, shall maintain at one of its offices outside of the United Kingdom a copy of each Transfer Certificate delivered to it and a register (the Register) for the recordation of the names and addresses of each Bank and the Commitments of and obligations owing to each Bank.  Without limitation of any other provision of this Clause 23, 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 Facility Agent and each Bank may treat each person whose name is recorded in the Register as a Bank 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.  The foregoing provisions are intended to comply with the registration requirements in U.S. 

89








Treasury Regulation Section 5f.103-1 so that the Advances are considered to be in registered form pursuant to such regulation.
		
	23.12
	Encumbrance over Banks' rights


In addition to the other rights provided to Banks under this Clause 23, each Bank may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create an Encumbrance in or over (whether by way of collateral or otherwise) all or any of its rights under any Financing Document to secure obligations of that Bank including, without limitation:
		
	(a)
	any charge, assignment or other Encumbrance to secure obligations to a federal reserve, central bank or a supranational bank; and


		
	(b)
	without prejudice to paragraph (b) of Clause 23.5, (Conditions to Assignments and Transfers) in the case of any Bank which is a fund, any charge, assignment or other Encumbrance granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Bank as security for those obligations or securities,


except that no such charge, assignment or other Encumbrance shall:
		
	(i)
	release a Bank from any of its obligations under the Financing Documents or substitute the beneficiary of the relevant charge, assignment or other Encumbrance for the Bank as a party to any of the Financing Documents; or


		
	(ii)
	require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Bank under the Financing Documents.


		
	23.13
	Pro Rata Interest Settlement


If the Facility Agent has notified the Banks that it is able to distribute interest payments on a "pro rata basis" to Existing Banks and Bank Transferees then (in respect of any assignment pursuant to Clause 23.3 (Assignments by Banks) or transfer pursuant to Clause 23.4 (Transfers by Banks)) and the date on which the relevant assignment or transfer becomes effective, in each case, is after the date of such notification and is not on the last day of an Interest Period:
		
	(a)
	any interest or fees in respect of the relevant Participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Bank up to but excluding the date on which the relevant transfer or assignment becomes effective (Accrued Amounts) and shall become due and payable to the Existing Bank (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six months, on the next of the dates which falls at six monthly intervals after the first day of that Interest Period); and


		
	(b)
	the rights assigned or transferred by the Existing Bank will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:


		
	(i)
	when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Bank; and


		
	(ii)
	the amount payable to the Bank Transferee on that date will be the amount which would, but for the application of this Clause 23.13, have been payable to it on that date, but after deduction of the Accrued Amounts.


In this Clause 23.13, references to Interest Period shall be construed to include a reference to any other period for accrual of fees. 

90








		
	24.
	CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS


		
	24.1
	Confidentiality and disclosure


		
	(a)
	The Facility Agent and each Obligor agree to keep each Funding Rate and, in the case of the Facility Agent, each Reference Bank Quotation, confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.


		
	(b)
	The Facility Agent may disclose:


		
	(i)
	any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the relevant Borrower (or the Company) pursuant to Clause 7.12(a) (Calculation and Payment of Interest); and


		
	(ii)
	any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration or settlement services in respect of one or more of the Financing Documents including, without limitation, in relation to the trading of participations in respect of the Financing Documents, to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Bank or Reference Bank, as the case may be.


		
	(c)
	The Facility Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:


		
	(i)
	any of its affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this sub-paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;


		
	(ii)
	any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;


		
	(iii)
	any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and


		
	(iv)
	any person with the consent of the relevant Bank or Reference Bank, as the case may be. 


		
	(d)
	The Facility Agent's obligations in this Clause 24 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 7.12(a) (Calculation and Payment of Interest) provided that (other than pursuant to paragraph (b)(i) above) the Facility Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.



91








		
	24.2
	Related obligations


		
	(a)
	The Facility Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Facility Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Facility Agent, any Reference Bank Quotation for any unlawful purpose.


		
	(b)
	The Facility Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Bank or Reference Bank, as the case may be:


		
	(i)
	of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 24.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and


		
	(ii)
	upon becoming aware that any information has been disclosed in breach of this Clause 24.


		
	24.3
	No Default


No Default will occur under Clause 24.3 (No Default) by reason only of an Obligor's failure to comply with this Clause 24.
		
	25.
	INDEMNITIES


		
	25.1
	Breakage Costs Indemnity


Each Borrower shall indemnify each Bank on demand against any reasonable loss or expense (including any loss or expense on account of funds borrowed, contracted for or utilised to fund any amount payable under this Agreement, any amount repaid or prepaid under this Agreement or any Advance) which that Bank has sustained or incurred as a consequence of:
		
	(a)
	an Advance not being made to such Borrower following the service of a Drawdown Notice (except as a result of the failure of that Bank to comply with its obligations under this Agreement) or the service of a Market Disruption Notice in respect of an Advance requested by such Borrower;


		
	(b)
	the failure of such Borrower to make payment on the due date of any sum due under this Agreement;


		
	(c)
	the occurrence of any Default or the operation of Clause 16.2 (Acceleration) in relation to such Borrower; or


		
	(d)
	any prepayment or repayment of an Advance otherwise than on the last day of an Interest Period relative to that Advance, such loss or expense being equal to the amount (if any) by which (i) the additional interest excluding the Margin which would have been payable on the amount so received or recovered had it been received or recovered on the last day of the relevant Interest Period exceeds (ii) the amount of interest determined by the relevant Bank, acting reasonably, which would have been payable to it on the last day of the relevant Interest Period in respect of a deposit in the currency of the amount so received or recovered equal to the amount so received or recovered (the Relevant Amount) placed by it for a period (the Relevant Period) starting on the third Business Day following the date of such receipt or recovery or, in the case of a prepayment in accordance with Clause 8.4 (Voluntary Prepayment), the day of prepayment and ending on the last day of the relevant Interest Period and attracting interest at the rate quoted to the relevant Bank at its request by a leading bank in the European Interbank Market (if the currency is Euro) or the London Interbank Market (if any other currency) as the rate of interest that bank would pay on a Relevant Amount for the Relevant Period applicable to that Relevant Amount.


For the avoidance of doubt, any rate quoted to the Facility Agent by a Bank in connection with paragraph (d) above are confidential and may not be disclosed to any Party other than the Facility Agent.

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	25.2
	Currency Indemnity


		
	(a)
	Any payment made to or for the account of or received by any Finance Party in respect of any moneys or liabilities due, arising or incurred by an Obligor to any Finance Party in a currency (the Currency of Payment) other than the currency in which the payment should have been made under this Agreement (the Currency of Obligation) in whatever circumstances (including as a result of a judgment against any Obligor) and for whatever reason shall constitute a discharge to that Obligor only to the extent of the Currency of Obligation amount which that Finance Party is able on the date of receipt of such payment (or if such date of receipt is not a Business Day, on the next succeeding Business Day) to purchase with the Currency of Payment amount at its spot rate of exchange (as reasonably determined by that Finance Party) in the London foreign exchange market.


		
	(b)
	If the amount of the Currency of Obligation which that Finance Party is so able to purchase falls short of the amount originally due to that Finance Party under this Agreement, then the relevant Obligor shall promptly on demand indemnify that Finance Party against any loss or damage arising as a result of that shortfall by paying to that Finance Party that amount in the Currency of Obligation certified by that Finance Party as necessary so to indemnify it.


		
	(c)
	Each indemnity in this Clause 25.2 shall constitute a separate and independent obligation from the other obligations contained in this Agreement, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due under this Agreement or under any such judgment or order.


		
	25.3
	General


The certificate of the relevant Finance Party as to the amount of any loss or damage sustained or incurred by it shall be prima facie evidence to the Obligors in the absence of manifest error.
		
	26.
	LAW AND JURISDICTION


		
	26.1
	Law


This Agreement and any non-contractual obligations arising in connection with it are governed by and shall be construed in accordance with English law.
		
	26.2
	Jurisdiction


		
	(a)
	The Parties agree that the courts of England shall have jurisdiction to settle any disputes which may arise in connection with this Agreement (including a dispute relating to any non-contractual obligation arising out of or in connection with this Agreement) and that any judgment or order of an English court in connection with this Agreement is conclusive and binding on them and may be enforced against them in the courts of any other jurisdiction.  This paragraph (a) is for the benefit of each Finance Party only and shall not limit the right of each Finance Party, to the extent allowed by law, to bring proceedings against an Obligor in connection with this Agreement in any other court of competent jurisdiction or concurrently in more than one jurisdiction.


		
	(b)
	Each Obligor:


		
	(i)
	waives any objections which it may have to the English courts on the grounds of venue or forum non conveniens or any similar grounds as regards proceedings in connection with this Agreement; and


		
	(ii)
	consents to service of process by mail or in any other manner permitted by the relevant law.


		
	26.3
	Waiver of immunity


The Company irrevocably and unconditionally to the extent permitted by applicable law:

93








		
	(a)
	agrees not to claim any immunity from proceedings brought by a Finance Party against the Company in relation to a Financing Document and to ensure that no such claim is made on its behalf;


		
	(b)
	consents generally to the giving of any relief or the issue of any process in connection with those proceedings; and


		
	(c)
	waives all rights of immunity in respect of it or its assets.


		
	26.4
	Agent for Service


Each Obligor not incorporated in England and Wales shall at all times maintain an agent for service of process in England.  That agent shall be Ferrari N.V. (UK Branch) (the Process Agent).  Any claim form, writ, summons, judgment or other notice of legal process shall be sufficiently served on an Obligor if delivered to that agent at its address for the time being.  An Obligor shall not revoke the authority of that agent.  If for any reason any such agent no longer serves as agent of an Obligor to receive service of process, then that Obligor shall promptly appoint another such agent and immediately advise the Facility Agent of that appointment. To the extent legally possible, each Obligor hereby releases the Process Agent from the restrictions on multi-representation (Mehrfachvertretung) and self-dealing (Insichgeschäft) stipulated by section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law.
		
	26.5
	Waiver of trial by jury


EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION IN CONNECTION WITH ANY FINANCING DOCUMENT OR ANY TRANSACTION CONTEMPLATED BY ANY FINANCING DOCUMENT.  THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
		
	26.6
	USA Patriot Act


Each Finance Party that is subject to the requirements of the USA Patriot Act hereby notifies each Obligor that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies the Obligors, which information includes the name and address of the Obligors and other information that will allow such Finance Party to identify the Obligors in accordance with the USA Patriot Act.  Each Obligor agrees that it will provide each Finance Party with such information as it may request in order for such Finance Party to satisfy the requirements of the USA Patriot Act.
IN WITNESS WHEREOF the Parties have caused this Agreement to be duly executed on the date set out above.

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SCHEDULE 1
COMMITMENTS


	
				
	Bank
	Facility A Commitment (€)
	Facility B Commitment (€)
	Revolving Facility Commitment (€)

	Bank of America Merrill Lynch International Limited
	50,000,000
	150,000,000
	50,000,000

	BNP Paribas, Italian Branch
	50,000,000
	150,000,000
	50,000,000

	Citibank N.A., Milan Branch
	0
	200,000,000
	50,000,000

	Crédit Agricole Corporate & Investment Bank, Milan Branch
	50,000,000
	150,000,000
	50,000,000

	Intesa Sanpaolo S.p.A.
	50,000,000
	150,000,000
	50,000,000

	JPMorgan Chase Bank, N.A., London Branch
	50,000,000
	150,000,000
	50,000,000

	Mediobanca International (Luxembourg) S.A.
	50,000,000
	150,000,000
	50,000,000

	Société Générale 
	50,000,000
	150,000,000
	50,000,000

	UBS Limited
	50,000,000
	150,000,000
	50,000,000

	UniCredit S.p.A.
	50,000,000
	150,000,000
	50,000,000

	Total
	450,000,000
	1,550,000,000
	500,000,000





95










SCHEDULE 2
CONDITIONS PRECEDENT
PART 1
CONDITIONS PRECEDENT TO FIRST DRAWDOWN FOR THE FACILITIES 
		
	1.
	A certified copy of the constitutional documents of each Obligor, being in respect of:


		
	(a)
	Ferrari Italy, its deed of incorporation (atto costituitivo) and current by-laws (statuto);


		
	(b)
	Ferrari Holdco, its deed of incorporation (akte van oprichting) and its articles of association (statuten) and an up-to-date extract of the registration of the Dutch Obligor in the Trade Register of the Chamber of Commerce; and


		
	(c)
	Ferrari Germany:


		
	(i)
	an online excerpt from the commercial register (Handelsregister) at the relevant local court (Amtsgericht) of most recent date (not older than 14 calendar days); 


		
	(ii)
	a copy of the articles of association (Satzung) of most recent date, as filed with the competent commercial register; 


		
	(iii)
	(to the extent applicable) copies of the procedural orders (Geschäftsordnung) of any supervisory board (Aufsichtsrat), and/or management board (Vorstand).


		
	2.
	A copy of the articles of association of FE Interim B.V. and FE Newco.


		
	3.
	For each Obligor incorporated under the laws of the United States of America or any state of the United States of America (including the District of Columbia), a certificate of good standing issued by such Obligor’s state of incorporation or organisation, dated no earlier than the date falling five days prior to the Signing Date.


		
	4.
	If applicable and required, a copy of a resolution of the board of directors of each Obligor:


		
	(a)
	approving the terms of, and the transactions contemplated by, the Financing Documents to which it is a party and resolving that it execute, deliver and perform the Financing Documents to which it is a party including, for each Dutch Obligor, a declaration by each managing director on conflict of interest (tegenstrijdig belang) within the meaning of Article 2:129(6) of the Dutch Civil Code;


		
	(b)
	authorising a specified person or persons to execute the Financing Documents to which it is a party on its behalf; and


		
	(c)
	authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Drawdown Notice and Selection Notice) to be signed and/or despatched by it under or in connection with the Financing Documents to which it is a party, 


or any other appropriate evidence of due authority of an Obligor.
		
	5.
	If applicable and required, in relation to Ferrari Germany, a copy of a resolution of the supervisory board (Aufsichtsrat) of such Obligor approving the terms of, and the transactions contemplated by the Financing Documents.


		
	6.
	A specimen signature of persons authorised by the resolution in paragraph 4(c) above or otherwise in relation to the Financing Documents and related documents.


		
	7.
	A certificate from an authorised signatory of each Obligor (or, in the case of an Obligor incorporated under the laws of the United States of America or any state of the United States of America, the secretary or assistant secretary of such Obligor) confirming that:



96








		
	(a)
	each copy document relating to it specified in this Part 1 of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Signing Date; 


		
	(b)
	(in the case of the Original Company) borrowing and guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guarantee or similar limit binding on it to be exceeded; and


		
	(c)
	(in the case of any Original Borrower other than the Original Company) borrowing the Total Facility B Commitments and Total Revolving Facility Commitments would not cause any borrowing or similar limit binding on it to be exceeded.


		
	8.
	For each Italian Obligor, a solvency certificate (certificato di vigenza avente valore di certificazione) dated no earlier than the date falling five days prior to the Signing Date.


		
	9.
	The Upfront Fees Letter duly executed by the Company.


		
	10.
	For the Dutch Obligor, either an unconditional positive works council advice (advies) and the related request for advice in respect of the transactions contemplated by the Financing Documents or a confirmation by the management board of the Obligor that no works council (ondernemingsraad) having jurisdiction over the Obligor has been installed and no works council will be installed in the foreseeable future.


		
	11.
	The Agency Fee Letter duly executed by the Obligors' Agent.


		
	12.
	A letter addressed by the Process Agent to the Facility Agent in which it agrees to act as each Obligor's agent for service of process in England for the purposes of this Agreement.


		
	13.
	A copy of the Original Financial Statements of the Company.


		
	14.
	Legal opinions in the form provided to the Facility Agent from each of:


		
	(a)
	Allen & Overy LLP, English law legal advisers to the Arrangers in respect of the validity and enforceability of this Agreement;


		
	(b)
	Sullivan & Cromwell LLP, German law legal advisers to Ferrari Germany on powers and capacity of the Obligors incorporated in Germany; 


		
	(c)
	Loyens & Loeff N.V., Dutch external counsel for Ferrari Holdco on powers and capacity of Ferrari Holdco;


		
	(d)
	Legance Studio Legale Associato, Italian external counsel for Ferrari Italy on powers and capacity of Ferrari Italy; and


		
	(e)
	Sullivan & Cromwell LLP, New York and Delaware external counsel for Ferrari US on powers and capacity of Ferrari US.


		
	15.
	Evidence that all fees (other than legal fees), costs and expenses then due and payable from the Obligors' Agent pursuant to Clause 19ý (Fees and Expenses) have been paid.


		
	16.
	Customary evidence required by the Facility Agent for the purpose of any know your customer requirements. 


		
	17.
	A declaration from the court that no creditor has opposed against the First Demerger.


		
	18.
	A declaration from the court that no creditor has opposed against the Second Demerger.


		
	19.
	A declaration from the court that no creditor has opposed against the Merger.


		
	20.
	A copy of the Merger proposal as made available on the FCA website. 


		
	21.
	A copy of the First Demerger proposal as made available on the FCA website.



97








		
	22.
	A copy of the Second Demerger proposal as made available on the FCA website.


		
	23.
	Either the Company or FCA has announced or notified that the resolution to effect the First Demerger, as referred to in the FCA Notice of the Extraordinary General Meeting of Shareholders as issued on 22 October 2015, was passed by the requisite majority of FCA shareholders at the extraordinary general meeting of FCA shareholders held on 3 December 2015.


		
	24.
	The following documents or evidence for the purpose of any know your customer requirements:


		
	(a)
	a copy of any powers of attorney for the authorised signatories of FE Newco;


		
	(b)
	a copy of relevant identification documents for the authorised signatories of FE Newco, including address and tax ID number if available; and


		
	(c)
	an extract of the registration of FE Newco with the Dutch trade register.



98










PART 2
ACCEDING OBLIGOR CONDITIONS PRECEDENT
		
	1.
	A Certified Copy of the constitutional documents of the proposed Additional RCF Borrower or Additional Guarantor (including for each Additional RCF Borrower or Additional Guarantor incorporated or organised under the laws of Germany (i) an online excerpt from the commercial register (Handelsregister) at the relevant local court (Amtsgericht) of most recent date (not older than 14 calendar days); (ii) a copy of the articles of association (Gesellschaftsvertrag) of most recent date, as filed with the competent commercial register; (iii) (to the extent applicable) an up-to-date copy of the list of shareholders (Gesellschafterliste) as filed with the competent commercial register; and (iv) (to the extent applicable) copies of the procedural orders (Geschäftsordnung) of any supervisory board (Aufsichtsrat), advisory board (Beirat) and/or management board (Geschäftsführung).


		
	2.
	Certified Copies of documents evidencing that the officers of the proposed Additional RCF Borrower or Additional Guarantor who act as signatories for that proposed Additional RCF Borrower or Additional Guarantor in relation to the Financing Documents have the relevant corporate authority to bind that proposed Additional RCF Borrower or Additional Guarantor and also setting out specimen signatures of such officers.


		
	3.
	In the case of an Additional Guarantor or Additional RCF Borrower incorporated in the Netherlands, a declaration by each managing director on conflict of interest (tegenstrijdig belang) within the meaning of Article 2:129(6) or Article 2:239(6) (as applicable) of the Dutch Civil Code.


		
	4.
	A certificate from an authorised signatory of the proposed Additional RCF Borrower or Additional Guarantor confirming that (in the case of an Additional RCF Borrower) borrowing the Total Revolving Facility Commitments in full would not breach any limit binding on that Additional RCF Borrower and (in the case of an Additional Guarantor) guaranteeing the Total Commitments in full would not breach any limit binding on that Additional Guarantor.


		
	5.
	In respect of each Additional RCF Borrower or Additional Guarantor incorporated or organised under the laws of Germany, a copy of a resolution of the supervisory board (Aufsichtsrat) and/or advisory board (Beirat) of that Additional RCF Borrower or Additional Guarantor (if and to the extent applicable and required pursuant to the relevant Additional RCF Borrower’s or Additional Guarantor articles of association, rules of procedure or any other constitutional documents of such Additional RCF Borrower or Additional Guarantor).


		
	6.
	In the case of an Additional RCF Borrower or Additional Guarantor incorporated in a jurisdiction other than England and Wales, a letter addressed from the Process Agent to the Facility Agent in which it agrees to act as agent for service of process in England of the proposed Additional RCF Borrower or Additional Guarantor for the purposes of this Agreement.


		
	7.
	Legal opinions from counsel approved by the Facility Agent (acting reasonably) in the jurisdiction of incorporation of the proposed Additional RCF Borrower or Additional Guarantor.


		
	8.
	A Certified Copy of the latest financial statements of the proposed Additional RCF Borrower or Additional Guarantor.


		
	9.
	An Accession Memorandum, duly executed by the Additional RCF Borrower or Additional Guarantor and the Company or the Obligors' Agent.


		
	10.
	Evidence required by any Bank (through the Facility Agent) for the purpose of any know your customer requirements (including (if applicable) the Codice Fiscale of such Additional RCF Borrower or Additional Guarantor).



99








		
	11.
	For each Additional Guarantor or Additional RCF Borrower incorporated (or having its registered seat) in Italy, a solvency certificate (certificato di vigenza avente valore di certificazione) dated no earlier than five days prior to the date of the relevant Accession Memorandum.


		
	12.
	A copy of any other authorisation or other document, opinion or assurance which the Facility Agent has notified the Obligors' Agent is necessary in connection with the entry into and performance of, and the transactions contemplated by, the Accession Memorandum or for the validity and enforceability of any Financing Document.


		
	13.
	For each Additional Guarantor or Additional RCF Borrower which is incorporated in the Netherlands or Italy, equivalent documentation to that required to be delivered by such Obligor under Part 1 of this Schedule 2, if applicable.



100










SCHEDULE 3
CONDITIONS SUBSEQUENT
		
	1.
	A certificate of FE Newco signed by an authorised signatory: 


		
	(a)
	confirming that: 


		
	(i)
	the First Demerger, the Second Demerger and the Merger have been effected; 


		
	(ii)
	with effect from the Separation Date, it is a Party to this Agreement and that it has assumed all the rights and obligations (including, without limitation, as a Guarantor) of Ferrari Holdco under the Financing Documents; and


		
	(iii)
	as at the Separation Date, the representations and warranties set out in paragraphs (a) (in respect of each Obligor only), (b) to (d) inclusive (which shall be deemed to be given by each Obligor, including with respect to FE Newco’s own obligations as Guarantor), (k), (l)(i), (m)(i) and (n)(i) of Clause 14 (Representations and Warranties) (but in respect of the representations in (m)(i) and (n)(i), not in respect of Material Subsidiaries) are correct in all material respects; and


		
	(b)
	attaching copies of the following documents and confirming that each such document is correct and complete:


		
	(i)
	the executed notarial deed of the First Demerger; 


		
	(ii)
	the executed notarial deed of the Second Demerger; and


		
	(iii)
	the executed notarial deed of the Merger.


		
	2.
	Legal opinions from Allen & Overy LLP (in England) and Loyens & Loeff N.V. (in the Netherlands) (or other legal counsel acceptable to the Facility Agent (acting reasonably)) addressed to the Finance Parties in the agreed form.1 




























______________________________
		
	1
	Timing of delivery of legal opinions to be confirmed.





101








SCHEDULE 4
FORM OF DRAWDOWN NOTICE
To:    [The Facility Agent]
From:
[date]
Dear Sirs,
€[l] credit agreement dated [l] 2015 (the Credit Agreement)
Terms defined in the Credit Agreement have the same meaning in this notice.
We request an Advance to be drawn down under the Credit Agreement as follows:
		
	1.
	Amount of Advance:


		
	2.
	Facility:    [A]/[B][Revolving Facility]


		
	3.
	Currency:    [l/Euro] 2 


		
	4.
	Drawdown Date:


		
	5.
	Duration of first Interest Period:


		
	6.
	Payment instructions:    (if applicable)


We confirm that today and on the Drawdown Date:
		
	(a)
	the representations and warranties in paragraphs (b) to (d) (inclusive), (k), (l)(i), (m)(i) and (n)(i) of Clause 14.1 (Representations and Warranties) (taking into account the limitations in Clause 14.2(b) (Repetition)) are correct in all material respects; and


		
	(b)
	[no Default or Potential Default has occurred and is outstanding or will occur on the making of the Advance]/[in the case of a Rollover Advance, no notice has been given under Clause 16.2 (Acceleration) of the Credit Agreement].


SIGNED


For and on behalf of
[l]




















___________________________
2    Euro only for Facility A; Euro or US$ for Facility B; Euro or an Alternative Currency for the Revolving Facility.

102








SCHEDULE 5
FORM OF SELECTION NOTICE
To:    [AGENT] as Facility Agent
From:    [          ]
Date:    [          ]
€[l] credit agreement dated [l] 2015 (the Credit Agreement)
		
	1.
	We refer to the Credit Agreement.  This is a Selection Notice.  Terms defined in the Credit Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.


		
	2.
	We refer to the following [Facility] [A/B] Advance[s] in [currency] with an Interest Period ending on [    ].* 


		
	3.
	[We request that the above Facility [A/B] Advance[s] be divided into [   ] Facility [A/B] Advances with the following Interest Periods.]** 


or
[We request that the next Interest Period for the above Facility [A/B] Advance[s] is [        ].]***    
		
	4.
	The proceeds of any change in currency should be credited to [account].


		
	5.
	This Selection Notice is irrevocable.


By:
[l]
























___________________________
*    Insert details of all Facility A Loans in the same currency which have an Interest Period ending on the same date.
**    Use this option if division of Loans is requested.
***    Use this option if sub division is not required.

103








SCHEDULE 6
FORM OF TRANSFER CERTIFICATE
TRANSFER CERTIFICATE*
To:    The Facility Agent
and the other parties to the Credit Agreement (as defined below)
This transfer certificate (Transfer Certificate) relates to a €[l] credit agreement dated [l] 2015 and made between (1) Ferrari N.V and others, (2) certain banks, and (3) [l] as facility agent (the Credit Agreement, which term shall include any amendments or supplements to it).
Terms defined and references construed in the Credit Agreement shall have the same meanings and construction in this Transfer Certificate.
		
	(a)
	[insert full name of Existing Bank] (the Existing Bank)4 


		
	(i)
	confirms that to the extent that details appear in the schedule to this Transfer Certificate under the headings Existing Bank's Revolving Commitment and Existing Bank's Participation in Advances, those details accurately summarise its Commitments and its Participations in Advances all or part of which is to be transferred; and


		
	(ii)
	requests [insert full name of Bank Transferee] (the Bank Transferee) to accept and procure, in accordance with Clause 23 (Assignments and Transfers) of the Credit Agreement, the substitution of the Existing Bank by the Bank Transferee in respect of the amount of its Commitment(s) and its Participation(s) in Advances to be transferred as specified in the schedule to this Transfer Certificate by signing this Transfer Certificate.


		
	(b)
	The Bank Transferee requests each of the Parties to accept this executed Transfer Certificate as being delivered under and for the purposes of Clause 23 (Assignments and Transfers) of the Credit Agreement so as to take effect in accordance with the provisions of that Clause on3 [insert date of transfer].


		
	(c)
	The Bank Transferee:


		
	(i)
	confirms that it is a Professional Lender;


		
	(ii)
	confirms that it [is]/[is not] a Restricted Bank for the purposes of Clause 1.9 (Restricted Bank / Restricted Obligor);


		
	(iii)
	confirms that it has received a copy of the Credit Agreement together with such other documents and information as it has requested in connection with this transaction;\


		
	(iv)
	confirms that it has not relied and will not rely on the Existing Bank to check or enquire on its behalf into the legality, validity, effectiveness, adequacy, accuracy or completeness of any such documents or information;








___________________________
		
	3
	If an Italian Designated Entity is transferring its Participation or an Italian bank is acquiring a Participation, the transfer certificate must either (i) be entered into outside the Italian territory or (ii) entered into by way of exchange of letters (i.e. a proposal signed by one party)


		
	4
	If a Designated Entity is transferring its participation, consider whether the Related Lender also needs to transfer the corresponding Commitment.  If so both the Designated Entity and the Related Lender should be a party to the transfer certificate in respect of the transfer of their respective rights and obligations.



104








		
	(v)
	agrees that it has not relied and will not rely on the Finance Parties to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Borrowers; and


		
	(vi)
	[confirms that it is/is not a FATCA Exempt Party]


		
	(d)
	The Bank Transferee undertakes with the Existing Bank and each of the other Parties that it will perform, in accordance with its terms, all those obligations which, by the terms of the Credit Agreement, will be assumed by it upon delivery of the executed copy of this Transfer Certificate to the Facility Agent.


		
	(e)
	On execution of this Transfer Certificate by the Facility Agent on their behalf, the Parties accept the Bank Transferee as a party to the Credit Agreement in substitution for the Existing Bank with respect to all those rights and/or obligations which, by the terms of the Credit Agreement, will be assumed by the Bank Transferee after delivery of the executed copy of this Transfer Certificate to the Facility Agent.


		
	(f)
	None of the Finance Parties:


		
	(i)
	makes any representation or warranty or assumes any responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of the Credit Agreement; or


		
	(ii)
	assumes any responsibility for the financial condition of any Borrower or any other party to the Credit Agreement or any other document or for the performance and observance by any Borrower or any other party to the Credit Agreement or any other document of its or their obligations and any and all conditions and warranties, whether express or implied by law or otherwise, are excluded.


		
	(g)
	The Bank Transferee confirms that its Lending Office and address for notices for the purposes of the Credit Agreement are as set out in the schedule to this Transfer Certificate.


		
	(h)
	The Existing Bank gives notice to the Bank Transferee (and the Bank Transferee acknowledges and agrees with the Existing Bank) that the Existing Bank is under no obligation to re-purchase (or in any other manner to assume, undertake or discharge any obligation or liability in relation to) the transferred Commitment(s) and Participation(s) at any time after this Transfer Certificate shall have taken effect.


		
	(i)
	The Bank Transferee expressly confirms that it [can/cannot] exempt the Facility Agent from the restrictions on self-dealing (Insichgeschäft) and multi-representation (Mehrfachvertretung) stipulated by section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions (if any) applicable to it pursuant to any other applicable laws.


		
	(j)
	Following the date upon which this Transfer Certificate shall have taken effect, without limiting the terms of this Transfer Certificate, each of the Bank Transferee and the Existing Bank acknowledges and confirms to the other that, in relation to the transferred Commitment(s) and Participation(s), variations, amendments or alterations to any of the terms of the Credit Agreement arising in connection with any renegotiation or rescheduling of the obligations under the Credit Agreement shall apply to and be binding on the Bank Transferee alone.


		
	(k)
	This Transfer Certificate and any non-contractual obligations arising in connection with it are governed by and shall be construed in accordance with English law.



105










THE SCHEDULE


	
			
	Existing Bank's Commitment
	 
	Amount of Commitment Transferred

	Existing Bank's Participation in Advances
	 
	Amount of Participation Transferred

	 
	 
	 

	 
	 
	 

	*[insert full name of Bank Transferee]
	 
	Address for notices

	*
	 
	*

	 
	 
	 




*[Bank Transferee]
By:        
(Duly authorised)


*[Existing Bank]


By:        
(Duly authorised)


The Facility Agent on behalf of itself and all other parties to the Credit Agreement


By:        
(Duly authorised)
Dated:

106








SCHEDULE 7
FORM OF OBLIGOR ACCESSION MEMORANDUM
To:    The Facility Agent
From:    [Subsidiary]
and
[Insert name of Company]/[The Obligors' Agent]
Dated: [l]
Dear Sirs,
		
	1.
	We refer to a credit agreement (the Credit Agreement) dated [l] 2015, between Ferrari N.V, [l] as facility agent, the financial institutions defined therein as Banks and others.


		
	2.
	Terms defined in the Credit Agreement shall bear the same meaning herein.


		
	3.
	The Company requests that [Subsidiary] become an Additional [RCF Borrower/Guarantor] pursuant to Clause 13 (Additional Obligors) of the Credit Agreement.


		
	4.
	[Subsidiary] is a company duly organised under the laws of [name of relevant jurisdiction].


		
	5.
	[Subsidiary] confirms that it has received from [the Company]/[The Obligors' Agent] a true and up-to-date copy of the Credit Agreement.


		
	6.
	[Subsidiary] undertakes, upon its becoming a [Borrower/Guarantor], to perform all the obligations expressed to be undertaken under the Credit Agreement by a [Borrower/Guarantor] and agrees that it shall be bound by the Credit Agreement in all respects as if it had been an original party thereto as a [Borrower/Guarantor] (for the avoidance of doubt, the Subsidiary shall upon its accession to the Credit Agreement, make the representations and warranties contained in Clause 14.1 (Representations and Warranties) in respect of itself only and, in respect of the representations and warranties in Clause 14.1(j) (Representations and Warranties), in respect of its then latest audited financial statements).


		
	7.
	[Subsidiary] expressly confirms that it [can/cannot] exempt the Obligors’ Agent from the restrictions on self-dealing (Insichgeschäft) and multi-representation (Mehrfachvertretung) stipulated by section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions (if any) applicable to it pursuant to any other applicable laws.


		
	8.
	This memorandum shall be governed by English law.




	
				
	[Insert name of Company]
	 
	[Subsidiary]
	 

	By:
	 
	By:
	 





107








SCHEDULE 8
FORM OF RESIGNATION NOTICE
To:    [Insert name of Facility Agent]
From:    [Insert name of the Company]/[The Obligors' Agent]
Dated: [l]
Dear Sirs,
		
	1.
	We refer to a credit agreement (the Credit Agreement) dated [l] 2015, between Ferrari N.V, [l] as facility agent, the financial institutions defined therein as Banks and others.


		
	2.
	Terms defined in the Credit Agreement shall bear the same meaning herein.


		
	3.
	We declare that no amount is due from [name of Borrower/Guarantor] under any Financing Document and no [Advance borrowed by that Borrower is outstanding]5 [Potential Default or Default is outstanding or will be in existence immediately after this resignation]6 


		
	4.
	Pursuant to Clause 13.3 (Resignation of an Obligor) we hereby request that [name of Borrower/Guarantor] shall cease to be a Borrower/Guarantor under the Credit Agreement with effect from [insert date falling on or after the date of the Notice].


Yours faithfully


for and on behalf of 
[Insert name of the Company]/[The Obligors' Agent]
















































______________________________
		
	5
	Include if Borrower resignation


		
	6
	Include if Guarantor resignation



108








SCHEDULE 9
FORM OF MARGIN CERTIFICATE
To:    [Insert name of the Facility Agent] as Facility Agent
From:    [Insert name of the Company]
Date:    [          ]
€[l] credit agreement dated [l] 2015 (the Credit Agreement)
		
	1.
	We refer to the Credit Agreement.  This is a Margin Certificate.  Terms defined in the Credit Agreement have the same meaning in this Margin Certificate unless given a different meaning in this Margin Certificate.


		
	2.
	We confirm that as at [relevant accounting date]:


Consolidated Total Net Debt was [    ] and Consolidated Adjusted EBITDA was [    ]; therefore the ratio of Consolidated Total Net Debt to Consolidated Adjusted EBITDA is [  ]:[  ]
		
	3.
	We set out below calculations establishing the figures in paragraph 2 above:


[          ]
		
	4.
	We confirm that no Default or Potential Default is outstanding as [at relevant date to which the accounts delivered with this certificate related].


[COMPANY]
By:

109








SCHEDULE 10
FORM OF EXTENSION REQUEST
To:    [Insert name of Facility Agent]
From:    [Insert name of the Company]/[The Obligors' Agent]
Dated: [l]
Dear Sirs,
		
	1.
	We refer to a credit agreement (the Credit Agreement) dated [l] 2015, between Ferrari N.V, [l] as facility agent, the financial institutions defined therein as Banks and others.


		
	2.
	Terms defined in the Credit Agreement shall bear the same meaning herein.


		
	3.
	By this notice we give notice to each Bank to extend the Termination Date applicable to Facility A to [insert date falling 18 months after the Signing Date]. 




Yours faithfully




for and on behalf of 
[Insert name of the Company]/[The Obligors' Agent]

110








SCHEDULE 11
LIST OF DESIGNATED ENTITIES


	
			
	Related Lender
	Designated Entity
	Jurisdictions or tax residence of the Borrower in relation to which the Designated Entity will participate in Advances to that Borrower

	Bank of America Merrill Lynch International Limited
	Bank of America, N.A., London Branch
	United States of America

	Bank of America, N.A., Milan Branch
	Netherlands (in respect of Facility A only)

	Intesa Sanpaolo S.p.A.
	Intesa Sanpaolo S.p.A., New York Branch
	United States of America

	Intesa Sanpaolo S.p.A., Amsterdam Branch
	Italy
Netherlands
Germany

	JPMorgan Chase Bank, N.A., London Branch
	JPMorgan Chase Bank, N.A., Milan Branch
	Italy





111








SCHEDULE 12
FORM OF DESIGNATED ENTITY ACCESSION AGREEMENT
To:    [FACILITY AGENT] as Facility Agent
From:    [DESIGNATED ENTITY] and [RELATED LENDER]
Date:    [               ]
Ferrari N.V - €[l] credit agreement dated [l] 2015 (the Agreement)
		
	1.
	Words and expressions defined in the Agreement have the same meaning in this accession agreement.


		
	2.
	We refer to the Clause 2.7 (Designated Entities) of the Agreement.  This is an accession agreement.


		
	3.
	The Related Lender designates the Designated Entity as its Lending Office for the purpose of participating in Advances to Borrowers in or whose tax residence is in [JURISDICTION].


		
	4.
	[Name of Designated Entity] agrees to become a party to and to be bound by the terms of the Agreement as a Designated Entity.


		
	5.
	For the purposes of Clause 22 (Notices) of the Agreement, the Designated Entity's address for notices is:


[                ]
		
	6.
	This accession agreement and any non-contractual obligations arising in connection with it are governed by English law.




[DESIGNATED ENTITY]
By:


[RELATED LENDER]
By:


[FACILITY AGENT]
By:

112








SCHEDULE 13
FORM OF INCREASE CONFIRMATION
To:    [    ] as Facility Agent and [       ] as [Obligors’ Agent], for and on behalf of each Obligor
From:    [Increase Bank] (the "Increase Bank ")
Dated:
€[l] credit agreement dated [l] 2015 (the Credit Agreement)
		
	1.
	We refer to the Credit Agreement.  This agreement (the Agreement) shall take effect as an Increase Confirmation for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.


		
	2.
	We refer to clause 2.2 (Defaulting Bank/Illegality Increase) of the Credit Agreement.


		
	3.
	The Increase Bank agrees to assume and will assume all of the obligations corresponding to the Commitment(s) specified in the Schedule (the Relevant Commitment) as if it was an Original Bank under the Credit Agreement.


		
	4.
	The proposed date on which the increase in relation to the Increase Bank and the Relevant Commitment is to take effect (the Increase Date) is [      ].


		
	5.
	On the Increase Date, the Increase Bank becomes party to the relevant Financing Documents as a Bank.


		
	6.
	The Lending Office and address, fax number and attention details for notices to the Increase Bank for the purposes of Clause 22.3 (Addresses) are set out in the Schedule.


		
	7.
	The Increase Bank confirms that it is not a member of the Group or an affiliate of a member of the Group [and that it is a Professional Lender].


		
	8.
	This Agreement 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 this Agreement.


		
	9.
	This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.


		
	10.
	This Agreement has been entered into on the date stated at the beginning of this Agreement.



113








THE SCHEDULE
Relevant Commitment/rights and obligations to be assumed by the [Increase/Accordion] Bank
[insert relevant details]
[Lending office address, fax number and attention details for notices and account details for payments]


	
	
	[Increase Bank]

	By:




This Agreement is accepted as an Increase Confirmation for the purposes of the Credit Agreement by the Facility Agent and the Increase Date is confirmed as [     ].


	
	
	[Agent]

	By:





114










SCHEDULE 14
LMA FORM OF CONFIDENTIALITY UNDERTAKING
To:
	
		
	 
	[insert name of Potential 
Purchaser]




Re:The Agreement
	
	
	Company:                                                              (the "Company")
Date:
Amount:
Agent:




Dear Sirs
We understand that you are considering acquiring an interest in the Agreement which, subject to the Agreement, may be by way of transfer and assumption, assignment, the entering into, whether directly or indirectly, of a sub-participation or any other transaction under which payments are to be made or may be made by reference to one or more Financing Documents and/or one or more Obligors or by way of investing in or otherwise financing, directly or indirectly, any such transfer and assumption, assignment, sub-participation or other transaction (the "Acquisition").  In consideration of us agreeing to make available to you certain information, by your signature of a copy of this letter you agree as follows:
		
	1.
	CONFIDENTIALITY UNDERTAKING


You undertake (a) to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by paragraph 2 below and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to your own confidential information, and (b) until the Acquisition is completed to use the Confidential Information only for the Permitted Purpose.
		
	2.
	PERMITTED DISCLOSURE


We agree that you may disclose:
		
	(a)
	to any of your affiliates and any of your or their officers, directors, employees, professional advisers and auditors such Confidential Information as you shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph 2(a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information, except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;


		
	(b)
	subject to the requirements of the Agreement, to any person:


		
	(i)
	to (or through) whom you assign or transfer (or may potentially assign or transfer) all or any of your rights and/or obligations which you may acquire under the Agreement such Confidential Information as you shall consider appropriate if the person to whom the Confidential Information is to be given pursuant to this sub-paragraph (i) of paragraph (b) has delivered a letter to you in equivalent form to this letter;


		
	(ii)
	with (or through) whom you enter into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made or may be made 



115








by reference to the Agreement or any Obligor such Confidential Information as you shall consider appropriate if the person to whom the Confidential Information is to be given pursuant to this sub-paragraph (ii) of paragraph (b) has delivered a letter to you in equivalent form to this letter;
		
	(iii)
	to whom information is required or requested to be disclosed by any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation such Confidential Information as you shall consider appropriate; and


		
	(c)
	notwithstanding paragraphs 2(a) above and (b) above, Confidential Information to such persons to whom, and on the same terms as, a Finance Party is permitted to disclose Confidential Information under the Agreement, as if such permissions were set out in full in this letter and as if references in those permissions to Finance Party were references to you.


		
	3.
	NOTIFICATION OF DISCLOSURE


You agree (to the extent permitted by law and regulation) to inform us:
		
	(a)
	of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (iii) of paragraph (b) above except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and


		
	(b)
	upon becoming aware that Confidential Information has been disclosed in breach of this letter.


		
	4.
	RETURN OF COPIES


If you do not enter into the Acquisition and we so request in writing, you shall return or destroy all Confidential Information supplied to you by us and destroy or permanently erase (to the extent technically practicable) all copies of Confidential Information made by you and use your reasonable endeavours to ensure that anyone to whom you have supplied any Confidential Information destroys or permanently erases (to the extent technically practicable) such Confidential Information and any copies made by them, in each case save to the extent that you or the recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body or in accordance with internal policy, or where the Confidential Information has been disclosed under sub-paragraph (iii) of paragraph (b) above.
		
	5.
	CONTINUING OBLIGATIONS


The obligations in this letter are continuing and, in particular, shall survive and remain binding on you until (a) if you become a party to the Agreement as a lender of record, the date on which you become such a party to the Agreement; (b) if you enter into the Acquisition but it does not result in you becoming a party to the Agreement as a lender of record, the later of [include date which is the Termination Date] and the date falling twelve months after the date on which all of your rights and obligations contained in the documentation entered into to implement that Acquisition have terminated; or (c) in any other case the later of [include date which is the Termination Date] and the date falling twelve months after the date of your final receipt (in whatever manner) of any Confidential Information.
		
	6.
	NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC


You acknowledge and agree that:
		
	(a)
	neither we, nor any member of the Group nor any of our or their respective officers, employees or advisers (each a "Relevant Person") (i) make any representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information or any other information supplied by us or any member of the Group or the assumptions 



116








on which it is based or (ii) shall be under any obligation to update or correct any inaccuracy in the Confidential Information or any other information supplied by us or any member of the Group or be otherwise liable to you or any other person in respect of the Confidential Information or any such information; and
		
	(b)
	we or members of the Group may be irreparably harmed by the breach of the terms of this letter and damages may not be an adequate remedy; each Relevant Person may be granted an injunction or specific performance for any threatened or actual breach of the provisions of this letter by you.


		
	7.
	ENTIRE AGREEMENT: NO WAIVER; AMENDMENTS, ETC


		
	7.1
	This letter constitutes the entire agreement between us in relation to your obligations regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.


		
	7.2
	No failure to exercise, nor any delay in exercising, any right or remedy under this letter will operate as a waiver of any such right or remedy or constitute an election to affirm this letter.  No election to affirm this letter will be effective unless it is in writing.  No single or partial exercise of any right or remedy will prevent any further or other exercise or the exercise of any other right or remedy under this letter.  


		
	7.3
	The terms of this letter and your obligations under this letter may only be amended or modified by written agreement between us.


		
	8.
	INSIDE INFORMATION


You acknowledge that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and you undertake not to use any Confidential Information for any unlawful purpose.
		
	9.
	NATURE OF UNDERTAKINGS


The undertakings given by you under this letter are given to us and are also given for the benefit of the Company and each other member of the Group.
		
	10.
	THIRD PARTY RIGHTS


		
	10.1
	Subject to this paragraph 10 and to paragraphs 6 and 9, a person who is not a party to this letter has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this letter.


		
	10.2
	The Relevant Persons may enjoy the benefit of the terms of paragraphs 6 and 9 subject to and in accordance with this paragraph 10 and the provisions of the Third Parties Act.


		
	10.3
	Notwithstanding any provisions of this letter, the parties to this letter do not require the consent of any Relevant Person to rescind or vary this letter at any time.


		
	11.
	GOVERNING LAW AND JURISDICTION


		
	11.1
	This letter (including the agreement constituted by your acknowledgement of its terms)  (the "Letter") and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of the transaction contemplated by this Letter) are governed by English law.


		
	11.2
	The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Letter (including a dispute relating to any non-contractual obligation arising out of or in connection with either this Letter or the negotiation of the transaction contemplated by this Letter).



117








		
	12.
	DEFINITIONS


In this letter (including the acknowledgement set out below) terms defined in the Agreement shall, unless the context otherwise requires, have the same meaning and:
Confidential Information means all information relating to the Company, any Obligor, the Group, the Financing Documents, the Facilities and/or the Acquisition which is provided to you in relation to the Financing Documents or the Facilities by us or any of our affiliates or advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:
		
	(a)
	is or becomes public information other than as a direct or indirect result of any breach by you of this letter; or 


		
	(b)
	is identified in writing at the time of delivery as non-confidential by us or our advisers; or


		
	(c)
	is known by you before the date the information is disclosed to you by us or any of our affiliates or advisers or is lawfully obtained by you after that date, from a source which is, as far as you are aware, unconnected with the Group and which, in either case, as far as you are aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.


Group means the Company and its subsidiaries for the time being (as such term is defined in the Companies Act 2006).
Permitted Purpose means considering and evaluating whether to enter into the Acquisition. 
Please acknowledge your agreement to the above by signing and returning the enclosed copy.
Yours faithfully


    
For and on behalf of
[Seller]
To:    [Seller]
The Company and each other member of the Group
We acknowledge and agree to the above:


    
For and on behalf of
[Potential Purchaser]

118










SCHEDULE 15
FORM OF REALLOCATION NOTICE
To:    [l] as Facility Agent
From:    Ferrari N.V.
Dated:
Ferrari N.V. - €2,500,000,000 credit agreement dated [l] 2015 (the Credit Agreement)
		
	1.
	We refer to the Credit Agreement. This is a Reallocation Notice. Capitalised terms in this notice have the meanings given to them in the Credit Agreement.


		
	2.
	We refer to clause 2.3 (Facility A / Facility B Commitment Reallocation) of the Credit Agreement. This Reallocation Notice relates to the Facility A Commitment and the Facility B Commitment of [insert name of Reallocating Bank] (the Reallocating Bank).


		
	3.
	The Company and the Reallocating Bank agree that on and from the date of this notice:


		
	a.
	the Facility A Commitment of the Reallocating Bank is increased by €[l] million to €[l] million; and


		
	b.
	the Facility B Commitment of the Reallocating Bank is reduced by €[l] million to €[l] million.


		
	4.
	The increase in the Facility A Commitment and reduction of the Facility B Commitment set out in paragraph 3 above shall take effect on and from the date of this notice.


		
	5.
	We each request you to notify the other Banks of the Total Facility A Commitments and Total Facility B Commitments after giving effect to this Reallocation Notice.


		
	6.
	This notice and any non-contractual obligations arising out of or in connection with it are governed by English law.


Yours faithfully
for and on behalf of 
[The Company]
By:


Acknowledged and agreed:
[Reallocating Bank]
By:



119








Signatories
The Original Borrowers


FERRARI N.V.
By: 
	
		
	 
	/s/ Marco Casalino

	 
	Marco Casalino




FERRARI S.p.A.
By: 
	
		
	 
	/s/ Marco Casalino

	 
	Marco Casalino




FERRARI FINANCIAL SERVICES, INC.
By: 
	
		
	 
	/s/ Marco Casalino

	 
	Marco Casalino




FERRARI FINANCIAL SERVICES AG
By: 
	
		
	 
	/s/ Marco Casalino

	 
	Marco Casalino




The Original Guarantor


FERRARI N.V.
By: 
	
		
	 
	/s/ Marco Casalino

	 
	Marco Casalino








Obligors' Agent


FERRARI N.V.
By
	
		
	 
	/s/ Marco Casalino

	 
	Marco Casalino





120








The Banks
BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




BNP PARIBAS, ITALIAN BRANCH
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




CITIBANK N.A., MILAN BRANCH
By: 
	
		
	 
	/s/ Lucy Margaret Devlin

	 
	Lucy Margaret Devlin




CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK, MILAN BRANCH
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




INTESA SANPAOLO S.p.A.
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi






JPMORGAN CHASE BANK, N.A., LONDON BRANCH
By: 
	
		
	 
	/s/ Nia Jane Douglas

	 
	Nia Jane Douglas




MEDIOBANCA INTERNATIONAL (LUXEMBOURG) S.A.
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi







121








SOCIÉTÉ GÉNÉRALE 
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi






UBS LIMITED
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi






UNICREDIT S.p.A.
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi







122








Designated Entities 


BANK OF AMERICA, N.A., LONDON BRANCH
By: 
	
		
	 
	/s/ Ursula Catherine Murphy

	 
	Ursula Catherine Murphy




BANK OF AMERICA, N.A., MILAN BRANCH
By: 
	
		
	 
	/s/ Mario Ambrosio

	 
	Mario Ambrosio




INTESA SANPAOLO S.p.A., NEW YORK BRANCH
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




INTESA SANPAOLO S.p.A., AMSTERDAM BRANCH
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




JPMORGAN CHASE BANK, N.A., MILAN BRANCH
By: 
	
		
	 
	/s/ Nia Jane Douglas

	 
	Nia Jane Douglas





123








The Arrangers
BANCA IMI S.p.A.
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi






BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




BNP PARIBAS, ITALIAN BRANCH
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




CITIGROUP GLOBAL MARKETS LIMITED
By: 
	
		
	 
	/s/ Lucy Margaret Devlin

	 
	Lucy Margaret Devlin




CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK, MILAN BRANCH
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




J.P. MORGAN LIMITED
By: 
	
		
	 
	/s/ Nia Jane Douglas

	 
	Nia Jane Douglas




MEDIOBANCA - BANCA DI CREDITO FINANZIARIO S.p.A.
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi





124








SOCIÉTÉ GÉNÉRALE CORPORATE & INVESTMENT BANKING
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




UBS LIMITED
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




UNICREDIT S.p.A.
By: 
	
		
	 
	/s/ Matteo Gasperi

	 
	Matteo Gasperi




The Facility Agent
BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED
By: 
	
		
	 
	/s/ Kevin Peter Day

	 
	Kevin Peter Day









125