TWI 12.31.2012 EX 10.12






Private & Confidential                                         Execution copy






Dated 2 September 2011




ltaltractor I.T.M. S.p.A.
 as Borrower




lntesa Sanpaolo S.p.A. as Arranger




lntesa Sanpaolo S.p.A. as ITM Facility Agent




lntesa  Sanpaolo S.p.A. as lntercreditor Agent




Titan Europe pic and ltaltractor I.T.M. S.p.A. 
as ITM Guarantors




and




The Financial Institutions listed in Schedule 1 as ITM Lenders






AMENDMENT AND RESTATEMENT AGREEMENT No. 2
relating to a Euro  130,000,000




FACILITY AGREEMENT
dated 2 February 2006 and amended and restated on 19 May 2009



1






Contents




Clause     Page






Definitions and interpretation......................................................................................................... 3


2    Amendments to the Principal Agreement...................................................................................... 4


3    Representations and warranties.................................................................................................... 4


4    Confirmation of the Guarantor ....................................................................................................... 6


5    Fees and expenses ....................................................................................................................... 6


6    Miscellaneous ................................................................................................................................ 7


7    Conditions precedent..................................................................................................................... 8


8    Conditions subsequent .................................................................................................................. 9


9    Governing Law............................................................................................................................. 10


10    Enforcement ................................................................................................................................ 10




Schedule 1 The ITM Lenders................................................................................................................. 13


Schedule 2 Amended and Restated Agreement ................................................................................... 14



2






THIS AMENDMENT  AND  RESTATEMENT  AGREEMENT  No.  2 is dated 2 September 2011 and made in London BETWEEN:


(1)     ITALTRACTOR I.T.M. S.p.A. as Borrower;




(2)     TITAN EUROPE pic and ITALTRACTOR OPERATIONS S.p.A. as ITM 
Guarantors;
 (3)     INTESA SANPAOLO  S.p.A. as Arranger;
(4)     INTESA SANPAOLO  S.p.A. as ITM Facility Agent;


(5)     INTESA SANPAOLO  S.p.A. as lntercreditor Agent; and




(6)     THE FINANCIAL INSTITUTIONS listed in schedule 1 (The ITM Lenders), as ITM Lenders. WHEREAS:
(A)     This Amendment and Restatement Agreement No. 2 is supplemental to an agreement made between the same parties dated 2 February 2006, amended and restated on 19 May 2009 and further  amended   on    28  May  2010  and  18  October  2010  (the  Principal Agreement),  whereby the ITM Lenders agreed to make available to the Borrower a facility of up to Euro 130,000,000.00 upon the terms and subject to the conditions therein contained.


(B)     The  parties  to  the  Principal  Agreement  have  agreed  to  enter  into  this  Amendment  and Restatement Agreement  No. 2 to amend certain provisions  of the Principal Agreement upon satisfaction of the conditions precedent indicated in clause 7 (Conditions precedent).


NOW IT IS AGREED as follows:


1     Definitions and interpretation




1.1     Definitions in Principal Agreement






		
	1.1.1 
	Unless the context otherwise requires and save as mentioned below, words and expressions defined  in  the  Principal  Agreement  shall  have  the  same  meanings  when  used  in  this Amendment  and Restatement Agreement.




1.1.2     In addition to the foregoing:


(a)       in the Principal Agreement and in this Amendment and Restatement Agreement No. 2 the expression "Amendment and Restatement Agreement No. 2" shall mean this Amendment and Restatement Agreement No. 2; and




(b)     the  term  "Effective  Date"  has  the  meaning  given  to  it  in  clause  7.1  (Conditions precedent).

3






1.2     Interpretation of Principal Agreement




References in the Principal Agreement to "this Agreement" shall unless the context otherwise requires, be references to the Principal Agreement as amended by this Amendment and Restatement Agreement No. 2 and words such as "herein", "hereof', "hereunder", "hereafter", "hereby" and "hereto",  where they appear in  the Principal Agreement, shalf be construed accordingly.


1.3     Incorporation  of certain references




Clauses 1.2 (Construction), 1.3 (Italian terms) and 1.4.1 (Third party rights) of the Principal Agreement shall be deemed to be incorporated in this Amendment and Restatement Agreement No. 2 in full, mutatis mutandis.


1.4     Designation


In accordance with the Principal Agreement, the parties hereto designate this Amendment and


Restatement Agreement No. 2 as an ITM Finance Document.




2    Amendments to the Principal Agreement


With effect from the Effective Date the Principal Agreement shalf be amended and restated so that it shall be read and construed for all purposes as set out in Schedule 2 (Amended and Restated Agreement).


3    Representations and warranties


Each of the Obligors makes the representations and warranties set out in this clause 3 (Representations and warranties) on the date of this Amendment and Restatement Agreement No. 2 and the Effective Date.


3.1     Representations  and warranties  in Principal Agreement


The Repeating Representations are true and correct as if made at the date of this Amendment and Restatement Agreement No. 2 (or the Effective Date, as applicable) with reference to the facts and circumstances existing at such date.


3.2     Corporate power
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, this Amendment and Restatement Agreement No.  2 and  the transactions contemplated by this Amendment and Restatement  Agreement No. 2

4






3.3     Binding obligations
The obligations expressed to be assumed by it in this Amendment and Restatement Agreement No. 2 are, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to clause 4 (Conditions of Utilisation) and Schedule 2 (Conditions Precedent) of the Principal Agreement, legal, valid, binding and enforceable obligations.


3.4     No conflict with other  obligations


The entry into and performance by it of, and the transactions contemplated by, this Amendment and Restatement Agreement No. 2 do not and will not conflict with:


3.4.1    any law or regulation applicable to it;




3.4.2    its or any of its Subsidiaries' constitutional documents, or




3.4.3    any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets.




3.5     Consents obtained


All Authorisations required or desirable:




3.5.1    to enable  it lawfully  to enter  into, exercise its rights  and comply  with its obligations in this


Amendment and Restatement Agreement No. 2, and




		
	3.5.2 
	to make  this Amendment  and Restatement  Agreement No.  2 admissible in evidence in its jurisdiction of incorporation,




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


3.6     No filings required


Under the law of its jurisdiction of incorporation it is not necessary that this Amendment and Restatement Agreement No. 2, any Security Document or any amendments to the Security Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any  stamp, registration  or similar  tax be paid on or in relation to this Amendment and Restatement Agreement No. 2, any Security Document or any amendments to the Security Documents or the transactions contemplated by this Amendment and Restatement Agreement No. 2, any Security Document or any amendments to the Security Documents, except for any taxes imposed by Italy and required in connection with the Security Documents or as applicable upon  occurrence  of  a "caso  d'uso"  (case  of use)  or  of "enunciazione"  (explicit reference), according to articles 6 and 22 of the Presidential Decree n. 131, dated 26 April 1986.

5








4     Confirmation of the Guarantor


Each ITM Guarantor acknowledges the amendment and restatement of the Principal Agreement pursuant to clause 2 (Amendments to the Principal Agreement) of this Amendment and Restatement Agreement No. 2. Each ITM Guarantor acknowledges and agrees that the amendments  to  the  Principal  Agreement  set  forth  in  this  Amendment  and  Restatement Agreement No. 2 shall not constitute for the purposes of the Security Documents and the guarantee granted by it pursuant to clause 17 (Guarantee and indemnity) of the Principal Agreement, novation of any of  the obligations thereunder and confirms that, subject to any amendments to the Security Documents, its obligations under the ITM Finance Documents (including, for the avoidance of doubt, clause 17 (Guarantee and indemnity) of the Principal Agreement,  and  the  Security  Documents)  and  any  Security,  guarantee,  suretyship  and indemnity provided pursuant thereto, remain in full force and effect.


5    Fees and expenses




5.1     Expenses


Within 5 Business Days of the date of this Amendment and Restatement Agreement No. 2 the Borrower shall  pay  the  ITM  Facility  Agent and  the  Arranger  the  amount  of  all costs  and expenses (including legal fees) incurred by any of them in connection with the negotiation, preparation, printing and execution of this Amendment and Restatement Agreement No. 2 and any other related document.


5.2     Stamp and other duties


The Borrower  shall  pay and,  within three Business Days  of  demand, indemnify each ITM Finance Party against any cost, loss or liability that that ITM Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of this Amendment and Restatement Agreement No. 2 and any other related document.


5.3     Fee
The Borrower shall pay to the ITM Facility Agent (for the account of the ITM Lenders) a fee in the amount of €421,818 (the Upfront  Fee). The Upfront Fee shall be payable to the ITMFacility Agent (for the account of the ITM Lenders) as follows:


		
	(a) 
	50% by no later than the date falling 10 Business Days from the date of this Amendment and Restatement Agreement No. 2; and




(b)     50% by no later than 30 September 2011.

6










6     Miscellaneous




6.1     Continuation of Finance  Documents




		
	6.1.1 
	Save as amended by this Amendment and Restatement Agreement No. 2, the provisions of the Finance Documents shall continue in full force and effect and the Principal Agreement and this Amendment and Restatement Agreement No. 2 shall be read and construed as one instrument.




		
	6.1.2 
	It is hereby acknowledged  and agreed  that the amendments  to the Principal Agreement set forth in this Amendment and Restatement Agreement No. 2 shall not constitute for the purposes of the Security Documents and the guarantee granted by the ITM Guarantors pursuant to clause 17 (Guarantee and indemnity)  of the Principal Agreement, novation of any of the obligations thereunder and, therefore, the parties hereto acknowledge and agree on the continuation of the Security created under the Security Documents.






6.2     Counterparts
This Amendment and Restatement Agreement No. 2 may be executed in any number of counterparts and by the different parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument.


6.3     Partial invalidity
If,  at any time,  any provision  of  this Amendment and  Restatement  Agreement No. 2 is or becomes  illegal,  invalid  or unenforceable  in any  respect  under  any  law  of any  jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision in any other respect or under the law of any other jurisdiction will be affected or impaired in any way.


6.4     No waiver


Save as specifically set out in this Amendment and Restatement Agreement No. 2, no waiver of any provision of any ITM Finance Document is given by the terms of this Amendment and Restatement  Agreement  No.  2 and  the ITM  Lenders  expressly  reserve  all  their rights and remedies in respect of any breach of, or other Default under the ITM Finance Documents.


6.5     Italian Transparency Provisions- Summary  sheet ("Documento di Sintesi')


For the purposes of the transparency  provisions set forth in the CICR Resolution of 4 March 2003  and  in  the  "Disposizioni   sulfa  trasparenza  delle  operazioni  e  dei  servizi  bancari  e finanziari" issued by the Bank of Italy and amended from time to time, each party he  to acknowledges and confirms that:

7








		
	6.5.1
	it has appointed and has been assisted by its respective legal counsel in connection with the negotiation, preparation and execution of this Amendment and Restatement Agreement No. 2; and




		
	6.5.2
	this Amendment  and  Restatement  Agreement No. 2,  and  all  of  its  terms  and conditions, including the recitals and the schedules hereto, have been specifically negotiated {in Italian, "oggetto di trattativa individuate") between the parties hereto.




7    Conditions precedent




7.1     Conditions precedent


The amendments to be made to the Principal Agreement by this Amendment and Restatement Agreement No. 2 shall take effect on and from the date on which the ITM Facility Agent notifies the Company and the ITM Lenders in writing that it has received  the following documents in form and substance satisfactory to it (the Effective Date):


7.1.1           any Security Document (other than the lntertractor 2011 Share Pledge) or amendment to the
Security Documents in form and substance satisfactory to the ITM Facility Agent;


		
	7.1.2
	satisfactory evidence that all corporate approvals which are required by the Obligors to approve the  terms  of,  and  the  transactions  contemplated  by,  this  Amendment  and  Restatement Agreement No. 2, any Security Document or any amendments to the Security Documents have been  obtained, including  a  transcript,  certified as  true  by  a  Director  of  the  Company,  of resolutions of the Board of Directors of the Obligors evidencing approval of this Amendment and Restatement Agreement No. 2, any Security Document or any amendments to the Security Documents and related  documents and authorising its  appropriate  officers  to execute and deliver this Amendment and Restatement Agreement No. 2, any Security Document or any amendments to the Security Documents and related documents and to give all notices and take all other action required by the Obligors under this Amendment and Restatement Agreement No. 2, any Security Document or any amendments to the Security Documents;




		
	7.1.3
	specimen signatures of the persons  authorised in the resolutions  of the Board of Directors referred to in clause 7.1.2 above if different from those delivered in relation to the Principal Agreement;




		
	7.1.4
	a copy of any other Authorisation or other document, opinion  or assurance which the ITM Facility Agent considers to be necessary or desirable following a change in law, banking regulations or banking practice in connection with the entry into and performance of the transactions contemplated by this Amendment and Restatement Agreement No.2,  any Security Document or any amendments to the Security Documents or for the validity and enforceability of this  Amendment and Restatement  Agreement  No.  2,  any   Security   Document  or  any amendments to the Security Documents; and



8






7.1.5    evidence that the fees, costs and expenses then due from the Borrower pursuant to clause 5


(Fees and expenses) above have been paid.




7.2     Further conditions  precedent




The ITM Facility Agent shall only give notice pursuant to clause 7.1 (Conditions precedent)


above if on the date of such notice:


		
	7.2.1
	the representations and warranties set out in clause 3 (Representations and warranties) above are true and correct; and




7.2.2          no Default has occurred and is continuing under the ITM Finance Documents.




8     Conditions subsequent




		
	8.1 
	Within 20 Business Days following the Effective Date, the Borrower shall deliver to the ITM Facility Agent a copy, certified as a true copy by a Director of the Company, of the original resolutions of the Board of Directors of the Borrower and ITM, duly signed and recorded in the relevant minute books, evidencing approval of this Amendment and Restatement Agreement No. 2, any Security Document  or any amendments to the Security Documents and related documents and authorising its appropriate officers to execute and deliver this Amendment and Restatement Agreement No. 2, any Security Document or any amendments to the Security Documents and related documents and to give all notices and take all other action required by the Borrower and ITM under this Amendment and Restatement Agreement No. 2, any Security Document or any amendments to the Security Documents.




		
	8.2 
	Within 30 days following the date of this Amendment and Restatement Agreement No. 2, the Company and the ITM Facility Agent shall agree a revised hedging policy setting out provisions relating to Hedging Agreements to be entered into pursuant to the Principal Agreement, in the same format as the Hedging Policy.




		
	8.3 
	Within 30 days following the Effective Date, the Obligors shall procure that the shareholders of lntertractor enter into a new pledge agreement (the lntertractor 2011 Share Pledge) granting a pledge over 100% of the share capital of lntertractor in favour of the lntercreditor Agent for the benefit of the Secured Parties, such pledge agreement to be in form and substance reasonably satisfactory to the lntercreditor Agent and substantially the same form as the lntertractor Share Pledge and to be executed before a notary in Germany.




		
	8.4 
	Within 10 Business Days following the date of this Amendment and Restatement Agreement No. 2, the Obligors shall procure that the  following legal opinions are delivered to the ITM Facility Agent in form and substance satisfactory to the ITM Facility Agent:



9






		
	8.4.1 
	a legal opinion of Gateley LLP as English legal advisers to the Company on power, capacity and due authorisation of the Company in substantially the same form as the legal opinion of HBJ Gateley Wareing issued on 19 May 2009 in connection with the Amendment and Restatement Agreement No. 1; and




		
	8.4.2 
	a legal opinion of Gianni, Origoni, Grippo & Partners as Italian legal advisers to the Obligors on power, capacity and due authorisation of the Borrower, ITM and NewCo.




9    Governing Law




This Amendment and Restatement Agreement No. 2 shall be governed by English law.




10     Enforcement


The provisions  of clause  38. (Enforcement)  of  the Principal  Agreement  shall apply mutatis mutandis to this Amendment and Restatement Agreement No. 2 as if set out in this Amendment and Restatement Agreement No. 2 in full.


IN WITNESS whereof the parties hereto have caused this Amendment and Restatement Agreement


No. 2 to be duly executed the day and year first above written.

10








EXECUTION PAGE




THE COMPANY


TITAN EUROPE PLC


acting by a director:




Director








THE BORROWER


ITALTRACTOR I.T.M. S.P.A. acting by a director:
Director












THE ITM GUARANTORS TITAN EUROPE PLC


acting by a director:






Director






ITALTRACTOR OPERATIONS S.P.A.


acting by a director:


Director








THE ARRANGER


SIGNED by


for and on behalf of
INTESA SANPAOLO S.P.A. pursuant to a power of attorney

11








THE INTERCREDITOR  AGENT






SIGNED by


for and on behalf of


INTESA SANPAOLO S.P.A.


pursuant to a power of attorney








THE ITM FACILITY AGENT




SIGNED by     ..
for and on behalf of


INTESA SANPAOLO  S.P.A.


pursuant to a power of attorney








THE ITM LENDERS SIGNED by


for and on behalf of


INTESA SANPAOLO S.P.A.




pursuant to a power of attorney








SIGNED by


for and on behalf of


UNICREDIT S.P.A.


pursuant to a power of attorney



12






Schedule 1


The ITM Lenders
	
					
	Name of the ITM Lender

	Intesa Sanpalo S.p.A

	Unicredit S.p.A





13






Schedule 2


Amended and Restated Agreement



14


















Private & Confidential                                     Execution copy








Dated 2 February 2006
and amended and restated on 19 May
     2009 and 2 September 2011     










ltaltractor I.T.M. S.p.A. as Borrower




lntesa Sanpaolo S.p.A. as Arranger




lntesa Sanpaolo S.p.A. as ITM Facility Agent




lntesa Sanpaolo S.p.A. as lntercreditor Agent




Titan Europe  pic and ltaltractor Operations S.p.A. as ITM Guarantors




and




The Financial Institutions listed in Part 2 of Schedule 1 as Original lTM Lenders




FACILITIES AGREEMENT    












A
NORTON ROSE









1






Contents




Clause     Page






SECTION 1 INTERPRETATION..............................................................................................................3


1     Definitions and interpretation .........................................................................................................3


SECTION 2 THEFACILITIES...............................................;..........;.....................................................32


·  2     The Facilities ............................................................:...................................................................32


3     Purpose........................................................................................................................................32


4    Conditions of Utilisation ...............................................................................................................33


SECTION 3 UTILISATION.....................................................................................................................34


5    Utilisation...................................................................................................................................... 34


SECTION 4 REPAYMENT, PREPAYMENT AND CANCELLATION ....................................................38


6    Repayment...................................................................................................................................38


7    Prepayment and cancellation ....................................................................................................... 39


SECTION 5 COSTS OF UTILISATION ..................................,.............................................................. 43


8    Interest .........................................................·................................................................................43


9    Interest Periods............................................................................................................................44


10     Changes to the caicuiation of interest..........................................................................................45


11     Fees ..............................................................................................................................................46


SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS.......................................................................... 48


12     Tax gross up and indemnities ......................................................................................................48


13     Increased costs...........................................................................................................................51


14     Other indemnities.........................................................................................................................52


15     Mitigation by the ITM Lenders ...........................,...................................................................,.....53


16     Costs and expenses ........................................................................................,...........................54


SECTION 7 GUARANTEE.....................................................................................................................55


17    Guarantee and indemnity.............................................................................................................55


SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT .........................58


18     Representations ...........................................................................................................................58

2










19     Information undertakings .............................................................................................................62


20     Financial covenants .....................................................................................................................66


21     General undertakings...................................................................................................................57


22     Events of Default..........................................................................................................................71


SECTION 9 CHANGES TO PARTIES.................................................................................................78


23     Changes to the ITM Lenders .......................................................................................................78 ·


		
	'24
	Changes to. the Obligors ..........................,.......:. .........................................;.................................81· 




SECTION 10 THE FINANCE PARTIES.............,.................................'..................................................82
25     Role of the ITM Facility Agent and the Arranger..........................................................................82


26     Conduct of business by the ITM Finance Parties ........................................................................88


27     Sharing among the ITM Finance Parties .....................................................................................88


SECTION 11 ADMINISTRATION ...........................................................................................................91


28     Payment mechanics........................................................................................-.............................91


29     Set-off.................................................;.........................................................................................94


30     Notices ......................................................................................................................................... 95


31     Calculations and certificates .........................;...............................:..............................................97


32     Partial invalidity ............................................................................................................................98


33     Remedies and Waivers................................................................................................................98


34     Amendments and 1Vaivers...........................................................................................................98


35     Counterparts ................................................................................................................................99


36     Summary Document ....................................................................................................................99


SECTION 12 GOVERNING LAW AND ENFORCEMENT...................................................................100


37     Governing law ..........................................................................................................................100


38     Enforcement...............................................................................................................................100
    
Schedule 1 The Original Parties ..........................................................................................................102


Schedule 2 Conditions precedent ........................................................................................................ 104


Schedule 3 Form of Utilisation Request............................................................................................... 108


Schedule 4 Form of Transfer Certificate ..............................................................................................110


Schedule 5 Form of Summary Document............................................................................................112

3






Schedule 6 Form of Compliance Certificate ........................................................................................114


Schedule 7 Existing Security................................................................................................................115


Schedule 8 Timetables........................................................................................;................................116


Schedule 9 Repayment  Schedule........................................................................................................117


Schedule 10 Hedging Policy .......................................................................................................:. .......119


Schedule 11 Existing Financial Indebtedness .....................................................................................121



4








        





5














THIS AGREEMENT is dated 2 February 2006 and amended and restated on 19 May 2009 and 2


September 2011 and made in London between:




(1)     ltaltractor Operations. S.p.A. ("ITM" or the "Borrower");




(2)     lntesa  Sanpaolo  S.p.A.  (formerly  Banca  lntesa  S.p.A.)  as  mandated  lead  arranger  (the


"Arranger");


{3)     Titan Europe pic and ltaltractor Operations S.p.A. ("ITO") as guarantors (the "ITM Guarantors");




(4)     The Financial Institutions listed in Part 2 of Schedule 1 (the Original Parties) as lenders (the


"Original ITM Lenders");




(5)     lntesa  Sanpaolo S.p.A.  (formerly  Banca lntesa S.p.A.} as agent of the other ITM Finance


Parties (the "ITM Facility Agent");




(6)     lntesa  Sanpaolo S.p.A. (formerly Banca lntesa S.p.A.) as intercreditor agent of the Secured


Parties (the "lntercreditor Agent").


 WHEREAS:
(A)     the Company has acquired the Rome Group (as defined below) through the acquisition of the entire share capital of NewCo, 17.74 per cent. of the shares in ITM (all as defined below) and 1 per cent. of the shares in ltaltractor ITM S.A. a company incorporated and  existing under the laws  of  the  Grand  Duchy  of  Luxembourg  and  having  its  registered  office  at  23  Avenue Monterey, L-2086, Luxembourg  (Luxco) pursuant to the Acquisition Documents (as defined below) (the "Acquisition"). The 1 per cent of the shares in Luxco were subsequently transferred to NewCo (as defined below);


(B)     the  Company's  enlarged  share  capital  has  been  admitted  to  trading  on  the  alternative investments market ("AIM"} in accordance with the rules of AIM (the "Admission") on the basis of, inter alia, an admission document dated 7 December 2005 prepared for the purpose of filing the application for the Admission (the "Admission Document");


(C)     the Company wishes to secure the financial means to implement a restructuring plan of certain outstanding indebtedness of the Rome Group and has requested that the Facility be made available to the Borrower;


(D)     the Company has further requested that a €40,000,000 facility is provided to ITO as part of the restructuring plan referred to in recital (C) above (the "ITO Facility");
;


(E)    on 1 January 2007 Banca lntesa S.p.A. changed its corporate name to lntesa Sanpaolo S.p.A.;

1






		
	(F) 
	on 20th October 2008 Banca di Roma S.p.A. and Bipop Carire S.p.A., inter alias, were merged into and formed part of Unicredit S.p.A., which became the legal successor in all the rights and obligations of Banca di Roma S.p.A. and Bipop Carire S.p.A.. On the same date Unicredit S.p.A. assigned its Corporate line of business (Ramo di Azienda Corporate) (comprehensive of any right and obligation formerly of Banca di Roma S.p.A. and Bipop Carire S.p.A. pertaining to this Agreement) to Unicredit Corporate Banking S.p.A. Subsequently, as of 1 November 2010, Unicredit Corporate Banking S.p.A has been merged into and is now part of Unicredit S.p.A., which became the legal successor in all the  rights and obligations of Unicredit Corporate Banking S.p.A.;




(G)     pursuant to a resolution passed at an extraordinary shareholders' meeting of 19 December


2006, NewCo S.p.A. changed its corporate name to "Titan ITM Holding S.p.A." and its registered office was moved  to Crespellano  (Bologna), Via  Confortino no. 23/28, Localita Calcara;


(H)     the Revolving Facility has been repaid in full by the Borrower and automatically cancelled at the end of the relevant Availability Period;


·(I)      pursuant to the Amendment and Restatement Agreement No.1 the Parties agreed to amend the repayment schedule in respect of the loans outstanding under the Facility as at the date of the Amendment and Restatement Agreement No.1;


{J)     the.principal amount outstanding ofthe loans made under the Term Loan Facility as at the date of the Amendment and Restatement Agreement No. 2 is €72,000,000 and the Borrower has requested (amongst other amendments) that such principal amount be divided into two Term Loans, being the Term Loan A in a principal amount of €60,000,000, and the Term Loan B in a principal amount of €12,000,000.




IT IS AGREED as follows:

2






SECTION 1


INTERPRETATION




1     Definitions and interpretation




1.1     Definitions




In this Agreement, including the recitals:




"Acquisition" has the meaning given to it in recital (A). 


"Acquisition Documents" means:


(a)      a share option agreement dated 18 July 2005 and entered into by the Shareholders in NewCo  and  lTM  in favour  of the Company  (as  amended on 7 December  2005 (the "Option Agreement"));


(b)      an option  notice dated  7 December  2005 from  the Company to the shareholders  of


NewCo and ITM (the "Option Notice"); and


(c)      any other document entered into or to be entered into for the purpose of implementing the transaction contemplated in the Option Agreement.


"Admission" has the meaning given to it in recital (B). 


"Admission Document" has the meaning given to it in recital (B).
"Affiiiate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.


"AIM" has the meaning given to it in recital (B).


"Amendment and  Restatement Agreement  No.1" means  the amendment and restatement agreement dated 19 May 2009, whereby the Parties hereto have amended and restated this Agreement upon the terms and subject to the conditions set out therein.


"Amendment and  Restatement Agreement  No.2" means  the amendment and restatement agreement dated 2 September 2011, whereby the Parties hereto have amended and restated this Agreement upon the terms and subject to the conditions set out therein.


"Approved Market" means either (i) AIM; or (ii) the Official List of the London Stock Exchange or any other recognised investment exchange, reasonably acceptable to the lntercreditor Agent.




"Authorisation" means  an authorisation, consent,  approval, resolution, licence, exemption, filing, notarisation or registration.



3








"Availability Period" means:




(a)     in relation  to  the Revolving Facility, the period from  and including  the  date of  this


Agreement to and including 31 May 2007; and




(b)     in relation to the Term Loan Facility, the period from  and including the date of  this


Agreement to and including 31January 2008.




"Available  Commitment" means, in relation to a Facility, an ITM Lender's Commitment under that Facility minus:


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




(b)     in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,


other than, in relation to any proposed Utilisation under the Revolving Facility, that ITM Lender's participation in any Revolving Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.




"Available  Facility"  means, in relation to a Facility, the aggregate for the time being of each


ITM Lender's Available Commitment in respect of that Facility.


"Bond"  means the "€100,000,000, 6.5% Guaranteed Notes due 2004" issued by Luxco and guaranteed by ITM (ISIN code no. XS0141764620).


"Bond  Account"  means the account held with lntesa Sanpaolo S.p.A (formerly Banca lntesa S.p.A.) in the name of the Company into which the Notes must be deposited following their purchase or redemption.


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




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




exceeds:




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





4






"Business  Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in Milan and London and which is also a TARGET Day.


"Business  Plan" means business plan for the Titan Group for the period 2011 to 2015 dated
April 2011, a copy of which is in the agreed form, as revised from time to time in accordance with the ITM Finance Documents and in consultation with the ITM Facility Agent.


"Cashflow" means, in respect of any period, cash generated from operations, less income taxes paid, less net cash used in investing activities, less dividends paid, plus any proceeds from the issue of shares, and provided that no amount is taken into account more than once.


"Calculation Date" means 31 December 2009 and each 30 June and 31 December in each year thereafter until the end of the Facility Period.






"Commitment" means the Term Loan Commitment or the Revolving Facility Commitment.


"Company"  means Titan Europe pic, a public limited company incorporated and existing under the laws of England and Wales with company number 03018340 and having its registered office at Bridge Road, Coakley, Kidderminster, Worcestershire, DY10 3SD, United Kingdom.


"Compliance Certificate" means a certificate substantially in the form set out in Schedule 6


(Form of Compliance Certificate).


"Consolidated Net Interest Payable" means, in respect of any relevant period, the aggregate amount of the interest (including  the interest element of leasing and hire purchase payments and capitalised interest), commission, fees, discounts and other finance payments payable by any member of the Titan Group (including any commission, fees, discounts and other finance payments payable by any such member of the Titan Group under any hedging arrangement but deducting any commission, fees, discounts and other finance payments receivable by it under any interest rate hedging instrument) in respect of Financial Indebtedness but· deducting any other interest receivable by any member of the Titan Group on any deposit or bank account and any interest payable in respect of the Convertible Credits and excluding any interest charged (but not payable) as a result of the fair value adjustment of the Convertible Credits and other loans under the Framework Agreement.


"Convertible Credits means the portion of the consideration payable by the Company to the Existing Banks under the Framework Agreement, together with accrued interest on such consideration, the payment of which is deferred to a date falling on the eighth anniversary of the Framework Agreement (which indebtedness and interest may be converted, at the option of an Existing Bank, into shares in the Company).




"Currently  Planned  Financial Indebtedness" means additional Financial Indebtedness from time to time to be incurred by members of the Titan Group not exceeding in any financial year



5






€5,000,000 in aggregate in respect of general borrowings  and €6,000,000 in aggregate in respectoffinanceleases.




"Debt Service"  means, in respect of any period, the aggregate of all cash payments made by the Titan Group in such period in respect of:
(a)   interest, commission, fees, discounts, prepayment fees, premiums or charges and other finance payments in respect of Financial Indebtedness excluding such items relating to intra-group indebtedness; and


(b)   repayments and prepayments of Financial Indebtedness, excluding




(i)     any  prepayment  made under clause  7.6 (Mandatory  prepayment - Excess


Cashflow);


		
	(ii) 
	any amounts falling due under Short Term Financial Indebtedness (except in . respect of Short Term Financial Indebtedness that is accelerated or terminated); and




(iii)    repayments of intra-group indebtedness




and provided that no amount is taken into account more than once.




"Debt Service  Cover  Ratio" means, in respect of any period, the ratio of Cashflow to Debt


Service.




"Default"  means  ali  Event of Default or any event or circumstance specified in clause 22 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the ITM Finance Documents or any combination of any of the foregoing) be an Event of Default.


"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 Facility (or otherwise in order for the transactions contemplated by the ITM Finance 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 ITM Finance Documents; or





6






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




(and which (in either such case)) is not caused by, and is beyond the control of, the Party whose operations are disrupted.


"Distribution" means any payment of dividends or other distribution (whether in cash or in kind) and any bonus issue or any return of capital including any payment in respect, or on the redemption, of any share capital whether at a premium or otherwise.


"EBITDA" means, in respect of any period, the consolidated profit on ordinary activities of the


Titan Group for such period:




		
	{a) 
	before  any  exceptional   items  and   extraordinary  items  (including  any  costs  of restructuring the Titan Group following the Acquisition);




(b)     after deducting (to the extent otherwise included) any gain over book value earned by a member of the Titan Group, and after adding back (to the extent otherwise deducted) any loss against book value incurred by a member of the Titan Group, on:


		
	{iv) 
	a disposal of an asset (not being an asset disposed of in the ordinary course of trading); and/or




(v)     a revaluation of an asset.




(c)     after adding back (to the extent otherwise deducted) the costs for the Acquisition and any amortisation thereof;


(d)     after  adding  back  {to  the  extent  otherwise  deducted)  amortisation  and  impairment charges in relation to goodwill and other intangible assets;


{e)     after  adding  back  (to  the  extent  otherwise  deducted)  depreciation  and  impairment charges;


(f)     before any deduction for interest payable by any member of the Titan Group; 
(g)     before Tax;
(h)     before taking into account the applicable share of any profit (except to the extent received by a member of the Titan Group in cash) or loss of any joint venture, associate or other person which is not a member of the Titan Group;
		
	(i) 
	before provision for any employee costs arising from share options or other employee share incentives; and



















7






j)     after  deducting  (to  the  extent  otherwise  included)  profits  {or  adding  back  losses)


attributable to minority interests in members of the Titan Group,




in each case for such period.  When used in relation to an individual member of the Titan Group, "EBITDA"  shall  be  construed  to  mean  the  earnings  before  interest, tax,  depreciation and amortisation (calculated on the same basis as EBITDA, mutatis mutandis) of that member of the Titan Group calculated on an unconsolidated basis.


 "EURIBOR" means, in relation to any Loan:


(a)     the applicable Screen Rate; or




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


as of the Specified Time on the Quotation Day for the offering of deposits in euro for a period comparable to the Interest Period of the relevant Loan.


"euro" and "€" means the single currency of the Participating Member States.




"Event of Default" means any event or circumstance specified as such in clause 22 (Events of


Default).




"Excess  Cashflow·means for aliy financial year of the Titan Group, the amount by which the aggregate of:


(a)     Cashflow; less




(b)     any of such Cashflow generated by any member of the Titan Group which the relevant member of the Titan Group is not permitted to distribute lend or transfer to the Rome Group or Titan Europe or where to do so would cause material taxation or other liabilities to be incurred; less


(c)      provision for any Distribution to be made by Titan Europe pic in respect of such financial year (unless such Distribution is prohibited under this Agreement);


exceeds 140% of Debt Service for such financial year.


"Existing Banks"  means  collectively  Abaxbank S.p.A., Banca Agricola Mantovana S.p.A., Banca CRV Cassa di Risparmio eli Vignola S.p.A., Unicredit S.p.A (formerly Unicredit Corporate Banking S.p.A, Banca di Roma S.p.A and Bipop Carire S.p.A}, lntesa Sanpaolo S.p.A. (formerly Banca lntesa S.p.A.), Banca Monte dei Paschi di Siena S.p.A., Banca Nazionale del 













8






Lavoro S.p.A., Banca Popolare deii'Emilia Romagna S.p.A., Banco di Sicilia S.p.A., Banco Popolare di Verona e Novara S.c.r.l, Centrobanca S.p.A., Credito Emiliano S.p.A., lnterbanca S.p.A., S.p.A., Mediocredito Trentino S.p.A., Meliorbanca S.p.A., CARISBO - Cassa di Risparmio In Bologna S.p.A, Unicredit Banca Mediocredito S.p.A. and "Existing  Bank" means any one them.


"Existing Debt Chart" means a paper describing all Financial Indebtedness owed by the Rome


Group to third parties under existing facilities pre completion of the Acquisition.




"Existing  Secured   Facilities"  means  collectively:  (a)  the  $24,385,000  facility  owed  by lntertractor America Co. as borrower to La Salle Bank N.A.; and (b) the Reals 29,251,000 facility owed by ltaltractor Brazil to Banco National do Desenvolvimento.




"Extension Option" means the option to extend the maturity of all or any part of the Loan B


outstanding as at the Termination Date in accordance with clause 6.3 (Extension Option).




"Facility" means the Revolving Facility or the Term Loan Facility.


"Facility Office" means the office or offices notified by an ITM Lender to the ITM Facility Agent in writing on or before the date it becomes an ITM Lender (or, following that date, by not less than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.


"Facility Period" means the period from the date of this Agreement until all amounts (actual or contingent)   payable   by   any   Obligor   under   the   ITM   Finance   Documents   have   been unconditionally and irrevocably paid or discharged in full by or on behalf of such Obligor to the satisfaction of the ITM Finance Parties.


"Fee Letter"  means any letter or letters dated on or about the date of this Agreement between the Arranger, the lntercreditor Agent, the ITM Facility Agent and the Company setting out any of the fees referred to in clause 11 (Fees).


"Financial Covenants" means the covenants contained in clause 20 (Financial covenants).


"Financial Indebtedness" means any indebtedness for or in respect of:


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


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













9






(d)      the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, lAS or IFRS (as applicable), be treated as a finance or capital lease;
e)     receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);


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


(g)     any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market valueshall be taken into account);


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


(i)        the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.


"Financial  Quarter  Day" means each 31 March, 30 June, 30 September and 31 December in any year.


"First Repayment  Date" means 31 January 2011.




"First  Triggering Date" means the date (being not earlier than the First Repayment Date) on which the Borrower delivers a Compliance Certificate showing that the Net Financial Indebtedness to EBITDA ratio is equal to or Jess than 3:1.


"Framework  Agreement" means an agreement entered or to be entered into on or around the
21 December 2005 between, inter alios, the Existing Banks and the Company providing, inter alia, for the without recourse assignment to the Company of certain existing indebtedness of the Rome Group owed to the Existing Banks.


"GAAP" means:




(a)     in relation to the Borrower and ITM, generally accepted accounting principles in Italy; and




(b)     in  relation  to  the  Company, generally  accepted accounting principles  in  the  United Kingdom.




"Group" means the Titan Group or the Rome Group.







10






  "Hedging  Policy" means the provisions relating to Hedging Agreements set out in Schedule 10 (Hedging Policy), 
as revised from time to time in accordance with the ITM Finance Documents and in consultation with the ITM Facility 
Agent
"Holding Company"  means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.


"lAS" means the International Accounting Standards, as amended, replaced or supplemented from time to time by the InternationalFinancial Reporting Standards.


· "IFRS"  means  International  Financial  Reporting  Standards issued  and/or  adopted  by  the


International Accounting Standards Board.


"lntercreditor Deed" means the. intercreditor deed dated as of the date hereof between inter alia the Obligors, the lntercreditor Agent, the ITM Facility Agent, the ITM Lenders and the ITM Lenders.


"Interest  Payment  Date" means:
(a)     in respect of a Term Loan, each 31 January, 30 April, 31 July and 31 October in any year; 
(b)     in respect of the Revolving Loan, the last Business Day of each Month in any year. 




"Interest  Period"  means, in relation to a Loan, each period determined in accordance with clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with clause 8.3 (Default interest).


"lntertractor" means Titan lntertractor GmbH, a joint stock company incorporated and existing  under the laws of Germany and having its registered office at Hagener Strasse 325, D-58285 Gevelsberg, Germany.




"lntertractor Acknowledgement of Debt" means the agreement acknowledging the debt owed by the Obligors to the ITM Finance Parties to be entered into by the Obligors in form and substance reasonably satisfactory to the lntercreditor Agent.


"lntertractor Share  Pledge"  means a pledge agreement granting a pledge over 100% of the share capital of lntertractor for the benefit of the Secured Parties to be entered into by the shareholders in lntertractor in form and substance reasonably satisfactory to the lntercreditor Agent.


"lntertractor 2011 Share Pledge" means a pledge agreement granting a pledge over 100% of the share capital of lntertractor for the benefit of the Secured Parties to be entered into by the shareholders in lntertractor pursuant to the Amendment and Restatement Agreement No.2 in

11






 form and substance reasonably  satisfactory  to the lntercreditor  Agent and substantially the same form as the lntertractor Share Pledge.


"lntertractor USA" means lntertractor America Co., a company incorporated and existing under the laws of the state Wisconsin and having its registered office at 960 Proctor Drive, 53121 Elkhorn (WI), United States of America.


"lntertractor USA Share  Pledge"  means a pledge agreement granting a first priority pledge over 100% of the shares of ltaltractor USA in favour of the Secured Parties to be entered into by the shareholders in lntertractor USA in accordance with clause 21.9.2 in form and substance reasonably satisfactory to the lntercreditor Agent.


"Italian Resident Lender" means an institution which, at any time:




		
	(a) 
	is authorised or licensed to carry out banking activities within the territory of Italy pursuant to Legislative Decree No. 385 dated 1 September 1993; or




(b)     is a financial institution pursuant to Article 107 of Legislative Decree No. 385 dated 1 September 1993; or


		
	(c) 
	is a branch office iri  Italy of an institution which is authorised or licensed in a country which is a member state of the European Union to carry out banking activities; and




(d)     in each case is deemed to be tax resident in Italy pursuant to applicable Italian tax laws. 


"Italian Security Documents" has the meaning given to it in the lntercreditor Deed.


"ltaltractor Brazil"  means ltaltractor Landroni Ltda, a company incorporated and existing under the laws of Brazil and having its registered office at Rodovia Edgard Maximo Zambotto, km 79, Atibaia (SP), Brazil.


"Italy" means the Italian Republic.
"ITM" means ltaltractor I.T.M. S.p.A., a joint stock company (societa per aziom) incorporated and existing under  the laws 
of Italy and having its registered office at Zona lndustriale Loc. Betlemme, 85100 Potenza, Italy.    


"ITM Finance Document" means:


(a)     this Agreement;    
 (b)    any Fee Letter;


(c)     the ITO Facility Agreement;



12














(d)     the lntercreditor Deed;


(e)      any ITM Hedging Agreement;
 (f)     any Security Document;
(g)     the Amendment and Restatement Agreement No. 1


(h)     the Amendment and Restatement Agreement No. 2; and


(i) ·    any other document designated as such by the lntercreditor Agent and the Borrower.


"ITM Finance  Parties" means the lntercreditor Agent, ITM Facility Agent, the Arranger, an ITM Lender or an ITM Hedging Bank.


"ITM  Hedging Agreement" means  any agreement  or instrument  relating  to the protection against or benefit from any rate or price (including a swap, option, cap, collar, forward or floor) and any other derivative or risk hedging agreement or instrument entered into in connection with the Term Loan Facility and in accordance with the Hedging Policy.


"ITM Hedging Banks"  means a person that has entered into an ITM Hedging Agreement with the Borrower and who, at the date of entering into the ITM Hedging Agreement, satisfies the requirements of paragraph 2.2 of Schedule 10 (Hedging Policy).




"ITM Facility" has the meaning given to it in recital (D).


"ITM Lender" means:




(a)      any OriginaiiTM Lender; and




(b)     any bank, financial institution, trust, fund or other entity which has become a Party in accordance with clause 
23 (Changes to the ITM Lenders),


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


Agreement.


"ITM Share Pledge" means a pledge agreement granting a pledge over 100% of the shares in ITM in favour of the Secured Parties to be entered into by the shareholders in ITM in form and substance reasonably satisfactory to the lntercreditor Agent.


"ITO"  means   ltaftractor  Operations  S.p.A.,  a  joint  stock  company  (societa  per  aziom) incorporated and existing under the laws of Italy and having its registered office at Via per Modena 152, 41014 Castelvetro di Modena, Italy.




"ITO Facility" has the meaning given to it in recital (0).                                                                                 





13








"ITO Facility Agent"  means lntesa Sanpaolo S.p.A. in its capacity as agent under the ITM Facility Agreement.


"ITO Facility Agreement" means a facility agreement date as of the date hereof in relation to the ITM Facility and made, inter alios, between ITM as borrower, the Company and ITM as guarantors and the ITM Lenders.


"ITO Lenders" means the financial institutions named as original lenders in the ITO Facility Agreement.




"Loan" means a Revolving Loan or a Term Loan. 


    


"Majority ITM Lenders" means:
(a)     if  there  are  no  Loans  then  outstanding,  an  ITM  Lender  or  ITM  Lenders  whose Commitments aggregate more than 66%%  of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66%%  of the Total Commitments immediately prior to the reduction); or


(b)     at any other time, an ITM Lender or ITM Lenders whose participations in the Loans then outstanding aggregate more than 66%% of all the Loans then outstanding.


"Majority  Senior Lenders" has the meaning given to it in the lntercreditor Deed. "Margin" means:
(a)      in relation to any Revolving Loan 1.00 per cent. per annum; 
(b)     in relation to any Term Loan 3.50 per cent. per annum, provided that if:


(i)     no Event of Default has occurred which is continuing; and




(ii)      the ratio of the aggregate Net Financial Indebtedness of the Titan Group (including for the avoidance of doubt Financial Indebtedness created under any ITM Finance Document) to EBITDA on the most recent Calculation Date falling on or after 30 June 2011 is within a range set out below,




then the Margin for each Term Loan will be the percentage per annum set out below in the column opposite that range:





14






	
		
	Ratio of Net Financial Indebtedness to EBITDA
	Margin

	Greater than 3.5:1
	3.75 per cent. per annum

	Less than or equal to 3.5:1 but greater than 3.0:1
	3.50 per cent. per annum

	Less than or equal to 3.0:1 but greater than 2.5:1
	3.25 per cent. per annum

	Less than or equal to 2.5:1 but greater than 2.0:1
	2.75 per cent. per annum

	Less than or equal to 2.0:1
	2.50 per cent. per annum




However:




(A)     any increase or decrease in the Margin  for a Term Loan shall take effect on the date which is the first day of the Interest  Period following receipt by the ITM Facility Agent of the Compliance Certificate for a period ending on the relevant Calculation Date pursuant to 19.2 (Compliance Certificate);


(B)     if, following receipt  by  the ITM  Facility  Agent of the financial statements to be delivered   pursuant  to  clause   19.1  (Financial  Statements)  and  the  relevant Compliance  Certificate,  those  statements  and  Compliance  Certificate  do  not confirm the basis for a reduced  Margin, then the Margin for .a Loan shall be the percentage per annum determined using the table above and the revised ratio of aggregate  Net  Financial  Indebtedness  of  the  Titan  Group  (including  for  the avoidance of doubt Financial Indebtedness created   under any ITM Finance Document) to EBITDA calculated using the figures in the Compliance Certificate; and


(C)     while 1)  an Event of Default  is  continuing  or 2) any requirement  of clause 20 (Financial covenants) is not satisfied, the Margin for any Loan shall be 3.75 per cent. per annum.


"Material Adverse Effect"  means an effect or likely effect which is, or would be, material and adverse on:


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


(b)     the ability  of  any  Obligor  to perform  its  financial obligations under  any ITM Finance Document;


(c)     the validity or enforceability of any ITM Finance Document;







15






(d)     the Security created under any Security Document or the ranking of such Security; or




{e)     any right or remedy of an ITM Finance Party under an ITM Finance Document.




"Material Company" means, at any time: (a)     an Obligor; or
(b)     a wholly-owned member of the Titan Group that directly or indirectly holds shares in an


Obligor; or




		
	(c) 
	a member of the Titan Group which: (i)     is an Operating Affiliate; or


(ii)      has  gross assets, net assets or turnover (excluding intra-group items)  which represents at least 10 per cent. of EBITDA, gross assets, net assets or turnover of the Titan Group, calculated on a consolidated basis


Compliance with the conditions set out in paragraph (c)(ii) shall be determined by reference to the most recent Compliance Certificate supplied under this Agreement and the latest audited consolidated financial statements of the Titan Group.


"Maximum   Indebtedness  Amount"   means,  at  any  date  of  determination, the  difference between (a) €144,500,000 minus (b) the principal amount outstanding of the ITO Facility as at that date of determination; minus (c) the principal amount outstanding (or its equivalent in euro) of the Existing Secured Facilities as at that date of determination.


"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.





16






"Net Financial Indebtedness" means, at any date of determination, any indebtedness for or in respect of:


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


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


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


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


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


(g)     any derivative transaction  entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);


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




(i)        the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above,


less,




cash and cash equivalent investments.




"Net Worth" meens at any time and in respect of the Titan Group, the aggregate at such time of:


(a)     the amount paid up or credited as paid up on the issued share capital of the Company (excluding any amount in respect of issued share capital that is required to be classified as a financial liability in accordance with the applicable GAAP);















17






(b)     the  amount  standing  to  the  credit  of  the  share  premium  account  of  the Company (excluding any amount in respect of issued share capital that is required to be classified as a financial liability in accordance with the applicable GAAP);


(c)     the amount standing to the credit (or less the amount standing to the debit) on the consolidated capital and revenue reserves of the Titan Group;




but after deducting the aggregate of:
 (i) any amount in respect of goodwill and other intangible assets of the Titan Group;
(ii)      any amount of the capital reserves of the Titan Group arising from the writing up of the book value of assets;


(iii}     any amount of the revenue or other reserves of the Titan Group created by any surplus on the sale of any investment or other asset (not including stock-in-trade} of the Group; and


(iv}     any amount attributable to minority interests.




"NewCo" means Titan ITM Holding S.p.A., a joint stock company .(societe per aziom) incorporated and existing under the laws of Italy and having its registered office at Crespellano (Bologna}, Via Confortino no. 23/28, Localita Calcara, Italy.


"NewCo Share Pledge" means a pledge agreement granting a shares pledge over 100% of the share capital of NewCo for the benefit of the Secured Parties entered into by the shareholders in NewCo.


"NewCo 2007 Share Pledge" means a pledge agreement over 100% of the increase in share capital of NewCo pursuant to the resolution of Newco dated 19 December 2006 for the benefit of the Secured Parties entered into on 26 January 2007 by the shareholders in NewCo.


"Notes" means the notes issued in respect of the Bond.


"New Holder" has the meaning given to it in clause 5.3.7(a).




"Obligor'' means the Company, the Borrower or each ITM Guarantor. 


"Operating Affiliates" means collectively:


(a)      intertractor USA; 


(b)     ltaltractor Brazil; 


(c)     lntertractor; and 











18






(d)     NewCo.


"Option  Notice"  has the meaning given to it in paragraph (b) of the definition of Acquisition Documents.


"Original FinancialStatements" means:




(a)     in relation to the Company, its audited consolidated financial statements of the Titan
Group for the financial year ended 31 December 2004; and
    
(b)     in relation to the Borrower, its audited financial statements for the financial year ended on


31 December  2004 and the audited consolidated  semi annual financial statements of


NewCo for the period up to 30 June 2005.


"Outstanding Amount"  means at any time of determination, the principal amount outstanding of the Facilities.


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


"Party" means a party to this Agreement.


"Passin! Group S.r.l." means Passini Group S.r.l., a limited liability company (societe a responsabilita  limitata),  incorporated  and  existing  under  the  laws  of  Italy  and  having  its registered office at Via Cesare Costa 19/d,41100 Modena, Italy.


"Permitted Acquisitions" means at any time after the First Repayment Date, acquisition of a company or companies having an enterprise value (in aggregate) not exceeding €10,000,000 or its equivalent in any currency (it being understood  that the "enterprise value" of the company shall be the value of its liabilities plus the net worth of such company) or otherwise with the prior written consent of the lntercreditor Agent (acting on the instructions of the Majority Lenders), such consent not to be unreasonably withheld.


"Permitted Disposals" means:




(a)   up  to  and  including  the  First  Repayment  Date,  any  sale, lease,  transfer  or  other disposal:


(i)     made in the ordinary course of trading of the disposing entity;





19






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


(iii)     of the assets identified in the audited financial statements of the Group for the year ended 31 December 2008 as being held for safe and (valued at £4,647,000 in such financial statements);


(iv)     of  assets  from  one  member  of  the  Group  to another  member  of  the Group provided that the acquiring company has not granted Security to any third party;


(v)     of obsolete or redundant assets for cash; or


(vi)     of  receivables  under  any  agreement  relating  to  the provision  of  Short  Term


Financial Indebtedness; and




(b)     thereafter, any safe, lease, transfer or other disposal:
(i)     under paragraph (a) of this definition; or




		
	{ii)
	where  the  higher  of  the  market  value  or  consideration  receivable  {when aggregated with the higher of the market value or consideration receivable for any other sale, lease, transfer or other disposal, other than any permitted under sub-paragraph (i)  above) does  not  exceed  €5,000,000 (or  its  equivalent  in another currency or currencies) in any financial year.




"Permitted FinancialIndebtedness" means:




(a)   up to and including the First Repayment Date:


		
	(i) 
	Financial Indebtedness incurred under facilities existing as of the date of  the Amendment and Restatement Agreement No.1 as listed in Schedule 11 (Existing Financial Indebtedness) as the same may from time to time be replaced, renewed or varied provided that the amount that is replaced, renewed or varied does not exceed the amount of the relevant facilities as at the date of the Amendment and Restatement Agreement No.1 and provided further that if, at any time: (i) the aggregate Financial Indebtedness of the Titan Group under the faci!ities referred to in Schedule 11 (Existing Financial Indebtedness) is less than (ii) the aggregate maximum amount permitted under this paragraph (a)(i) (as shown in column 3 (headed "Financial Indebtedness") of Part I (Existing Financial Indebtedness) and Part  II (Existing Short Term FinancialIndebtedness)  of Schedule 11 (Existing Financial Indebtedness)) (such difference, the Shortfall),  the Titan Group may incur Financial Indebtedness not exceeding, in aggregate, the Shortfall under new facilities entered into by any member of the Titan Group, whether or not such 



20






new facilities replace, renew or vary facilities in existence at the date of the ITM Facility  Agreement. It  is  understood that such  new  facilities shall  constitute Permitted Financial Indebtedness under this paragraph (a} provided alwo; ys that the aggregate amount of all Financial Indebtedness under the existing facilities listed in Schedule 11 (Existing Financial Indebtedness} (as they may, from time to time, be replaced, renewed or varied) and any such additional facilities entered into pursuant to this paragraph (a){i), does not exceed the aggregate maximum amount of Financial Indebtedness permitted under this paragraph (a), as shown in  the columns headed "Financial Indebtedness" in Parts I (Existing Financial Indebtedness)   and   II   (Existing   Short   Term   Financial   Indebtedness)   of Schedule 11 (Existing Financial Indebtedness)


(ii}    intercompany loans within the Titan Group;




(iii)     Currently Planned Financial Indebtedness; and




(iv)    Short Term Financial Indebtedness; and
      (v)     Financial Indebtedness  incurred  with the  written consent  of  the  lntercreditor


Agent (acting on the instructions of the Majority Lenders);and




		
	(b) 
	from the day immediately after the First Repayment Date, to the First Triggering Date:




 (i)     Financial Indebtedness referred to in paragraph (a) above; and


(ii)     any other Financial Indebtedness not exceeding in aggregate €10,000,000 (or its
 equivalent in any currency); 
    
(c)     thereafter:
(i)       Financial Indebtedness referred to in paragraphs (a) and (b) above (save that the consent of the lntercreditor Agent (acting on the instructions of the Majority Lenders) under sub-paragraph {a)(v) shall not be unreasonably withheld);


(ii)     intercompany loans within the Titan Group; and


(iii)     any other Financial Indebtedness which does not cause the ratio of Net Financial


Indebtedness  to  EBITDA  to  exceed  the relevant  level required  under  clause
20.1.1(b).




"Permitted Loans" means:




(a)   up to an including the First Repayment Date:




(i)     intercompany loans within the Titan Group;





21






(ii)     loans made in accordance with normal trade credit;




(iii)     loans made in accordance  with the Business Plan in respect of investments in


India and China;




(iv)     short-term loans to employees not exceeding £5,000  or its equivalent in any other currency;


(v)     loans made with the written consent of the lntercreditor Agent (acting on the instructions of the Majority Lenders); and


(b)     thereafter:


(i)       loans  permitted  under  paragraph  (a)  above  (save  that  the  consent  of  the lntercreditor Agent (acting on the instructions of the Majority Lenders) under s   - paragraph (a)(vi) shall not be unreasonably withheld);


		
	(ii) 
	intercompany loans within the Titan Group;


(iii)     loans to third parties, provided that such loans to third parties shall not exceed in aggregate €5,000,000 (or any equivalent in any currency).


"Permitted Security Interest" means:




(a)    up to and including the First Repayment Date:


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


(ii)     any lien arising by operation of law and in the ordinary course of trading;




(iii)     any Security entered into pursuant to any Security Document; or




(iv)     any Security over or affecting any asset of Titan Steel if such Security is required by Lloyds TSB Bank pic or its Affiliates to secure indebtedness the principal amount of which does not exceed £15,000,000 (or its .equivalent in another currency or currencies) provided that, prior to the .creation of the Security, Titan Steel shall provide the other ITM Lenders (through the ITM Facility Agent) with details of the nature, type and extent of the Security and the progress of negotiations in relation .to such Security;


(v)     any Security held by lntesa Sanpaolo S.p.A. in respect of the facilities provided to lntertractor USA as at the date of the Amendment and Restated Agreement; or



22






(vi)     any Security created under further insurance obligations of the relevant member of the Titan Group owed to the ITM Finance Parties in relation to the Security Documents or to lntesa Sanpaolo S.p.A. in relation to the facilities referred to in sub-paragraph (a)(v) above; and


(b)     thereafter:




(i)     any Security permitted under paragraph (a) above;


(ii)      any Security over or affecting any asset acquired by a member of the Titan Group after the First Repayment Date if:
		
	(A) 
	the Security was not created in contemplation of the acquisition of that asset by a member of the Titan Group;




		
	(B) 
	the principal amount secured has not been increased in contemplation or since the acquisition of that asset by a member of the Titan Group; and


		
	(C) 
	the Security is removed  or discharged  within 6 Months of  the date  of acquisition of such asset; or




(iii)     any  Security over  or affecting  any  asset  of  any  company which  becomes  a member of the Titan Group after the First Repayment Date, where the Security is created prior to the date on which that company becomes a member of the Titan Group, if:


		
	(A) 
	the Security was not created in contemplation of the acquisition of that company;




		
	(B) 
	the principal amount secured  has  not  increased in contemplation  of or since the acquisition of that company; and




		
	(C) 
	the Security is removed or discharged  within 6 Months of that company becoming a member of the Titan Group;




(iv)     any  Security  securing  indebtedness  the  principal  amount  of  which  (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Titan Group other than any permitted under paragraphs (b)(i) to (b) (iii) above) does not exceed €15,000,000 (or its equivalent in another currency or currencies).


"Placing" has the meaning given to it in recital (B).




"Qualifying Lender" means a bank or other financial institution:





23






(a)     which is an Italian Resident Lender lending through a Facility Office located in Italy; or




		
	(b) 
	has the benefit  of  a complete exemption from Italian withholding tax pursuant  to an applicable tax treaty.




"Quotation Day" means, in relation to any period for which an interest rate is to be determined, two TARGET Days before  the first day of that period  unless  market practice differs in  the Relevant Interbank  Market, in which case the Quotation Day will be determined by the ITM Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
"Reference  Banks"  means the principal office in Milan  of lntesa Sanpaolo S.p.A., Unicredit S.p.A. and San Paolo IMI S.p.A. or such other banks as may be appointed by the ITM Facil" Agent in consultation with the Borrower.
             "Relevant Interbank Market" means the European interbank market
"Relevant  Period" means each rolling period of twelve months ending on a Financial Quarter


Day.




"Repayment  Date" means each date specified in the first column of Schedule 9 (Repayment


Schedule).




"Repayment Instalment" means each instalment for the repayment of the Loan A.




"Repeating  Representations" means each of the representations repeated or deemed to be repeated under clause 18.21 (Time for making the representations).


"Revised Business Plan" has the meaning·given to it in clause 19.4.6.


"Revolving Accounts" means the accounts of the Borrower held with the ITM Facility Agent at its Via deii'Universita, Modena branch having the following details: (i) in relation to euro, IBAN number IT84 U030 6912 9306 1(524 7695 209, ABI 3069, CAB 12930, account number 6 1524 7695 209; (ii) in relation to US dollars, IBAN number IT03 0030 6912 9300 0700 0006 148, ABI 3069, CAB 12930, account number 7000006148.                             


"Revolving Facility" means  the revolving facility made  available under  this Agreement  as
described in clause 2 (The Facilities).


"Revolving Facility Commitment" means:




(a}     in relation to an Original ITM Lender, the amount set opposite its name under the heading


"Revolving Facility Commitment" in Part 2 of Schedule 1 (The Original Parties) and the

24






amount  of  any  other  Revolving  Facility  Commitment  transferred  to  it  under  this


Agreement; and




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




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




"Revolving Loan"  means  a loan made  or to be made  under the Revolving Facility or the principal amount outstandingfor the time being of that loan.


"Rollover Loan" means one or more Revolving Loans:




(a)      made or to be made on the same day that a maturing Revolving Loan is due to be repaid;
 (b)     the aggregate amount of which is equal to or less than the maturing Revolving Loan; and
(c)      made or to be made to the Borrower for the purpose of refinancing a maturing Revolving
Loan.




"Rome  Group"  means  NewCo  and  its  Subsidiaries  as  at  the  date  of  completion  of  the
Acquisition.




"Screen Rate" means the percentage rate per annum determined by the Banking Federation of the European Union for the relevant period displayed on the appropriate page of the Telerate screen. If the agreed page is replaced or service ceases to be available, the ITM Facility Agent may specify another page or service displaying the appropriate rate after consultation with the Borrower and the ITM Lenders.


"Secured Parties" has the meaning given to it in the lntercreditor Deed.




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


"Security Documents" means:




(a)     the lntertractor USA Shares Pledge (when entered into); 


(b)     the NewCo Share Pledge;


(c)      the Newco 2007 Share Pledge;


{d)     the lntertractor Acknowledgement of Debt; 


(e)     the lntertractor Share Pledge;



25






(f)     the lntertractor 2011 Share Plege;


 (g)      the ITM Share Pledge;


(h)     the ITM Share Pledge; and


(i)       any other document designated as such by the lntercreditor Agent acting reasonably.


"Security Provider" means a person that is from time to time party to one or more Security Documents pursuant to which it grants any Security in favour of the Secured Parties otherwise for the benefit of the Secured Parties.


"Short  Term Financial Indebtedness" means any unsecured Financial Indebtedness having a term not exceeding 12 months for or in respect of receivables sold or discounted or under any overdraft  or  other form  of short  term  working  capital finance in  an  aggregate amount not
exceeding at any one time the aggregate maximum amount of facilities for similar short term Financial Indebtedness existing as at 17 April 2009 as shown in Schedule 11 (Existing Financial Indebtedness).


"Specified Time" means a time determined in accordance with Schedule 8 (Timetables).




"Structure Memorandum" means a structure paper describing the Titan Group pre and post completion of the Acquisition.


"Subsidiary" means in respect of any person, any entity which is controlled directly or indirectly by that person or of whose dividends or distributions that person is entitled to receive more than 50 per cent. and any entity (whether or not so controlled) treated as a subsidiary in the latest financial statements of that person from time to time, and control for this purpose means the direct or indirect ownership of the majority of the voting share capital of such entity or the right or ability to direct management to comply with the type of material restrictions and obligations contemplated in this Agreement or to determine the composition of a majority of the board of directors (or like board) of such entity, in each case whether by virtue of ownership of share capital, contract or otherwise (and so that at the date of completion of the Acquisition the Subsidiaries of the Company shall include the Rome Group).


"Summary Document" means a document substantially in the form of Schedule 5 (Summary


Document) to be duly signed and delivered by the Borrower on the date of this Agreement.




"TARGET" means Trans-European Automated Real-time Gross Settlement Express Transfer payment system.


"TARGET Day" means any day on which TARGET is open for the settlement of payments in euro.



26






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


"Term Loan" means a loan made or to be made under the Term Loan Facility or the principal amount outstanding for the time being of that loan and includes the Term Loan A and the Term Loan B.


"Term Loan A" means a loan in a principal amount of €60,000,000 owed to the Lenders in the proportions  set  out  in  Part  2  of  Schedule 1  (The  Original  Parties)  as at  the date  of  the Amendment and Restatement Agreement No2.


"Term Loan B" means a loan in a principal amount of €12,000,000 owed to the Lenders in the proportions  set out  in  Part  2  of  Schedule 1  (The  Original  Parties)  as  at  the date  of  the Amendment and Restatement Agreement No. 2.


''Term  Loan  Facility" means  the term loan facility made available under this Agreement as described in clause 2 (The Facilities).


"Term Loan Commi  ment" means:




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


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


"Termination Date" means:


(a)     in relation to the Revolving Facility, 30 June 2007;




(b)     in relation to the Term Loan Facility, 31 October 2015.


"Titan Group" means the Company and its Subsidiaries for the time being (and shall (or shall be deemed to) include any member of the Rome Group).


"Total Commitments" means the aggregate of the Total Revolving Facility Commitments and the Total Term Loan Commitments being €130,000,000 at the date of this Agreement.


"Total  Revolving Facility  Commitments" means  the  aggregate of  the Revolving Facility


Commitments, being €30,000,000 at the date of this Agreement.



27






"Titan  Steel" means Titan Steel Wheels Limited, a company incorporated under the laws of England  and  Wales and  having  its  registered  office  at  Bridge  Road,  Coakley,  Near Kidderminster, Worcestershire DY10 3SD.




"Total Term Loan Commitments" means the aggregate of the Term Loan Commitments, being


€100,000,000 at the date of this Agreement


"Transfer  Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate).


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




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




{b)     the date on which the ITM Facility Agent executes the Transfer Certificate.




"Unpaid  Sum"  means any sum due and payable but unpaid by an Obligor  under the ITM Finance Documents.




"Utilisation" means a utilisation of the Facility.


"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made.




"Utilisation  Request"   means  a  notice  substantially  in  the  form  set  out  in  Schedule 3


(Requests).




"VAT" means value added tax and any other tax of a similar nature. 


"£"means  the lawful currency of the United Kingdom.


1.2     Construction




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


(a)   the "Arranger", the "lntercreditor Agent", the"  ITM Facility  Agent", any "ITM Finance Parties",   any   "ITM   Lender",   any   "Obligor"    or   any  "Material    Company",  the "lntercreditor Agent", any "Secured  Party" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;


(b)   "assets"   includes  present  and  future  properties,  revenues  and  rights  of  every description;


(c)   references to "certified copy" means that the copy should (a) in relation to a document to which a person incorporated outside of the United Kingdom is a party, be certified 

28






as a true copy in accordance with normal practice in the relevant jurisdiction by a public notary, or one or two directors or other authorised representative of the party providing those documents or, (b) in relation to a document to which a person incorporated in the United Kingdom is a party, be certified as a true copy by a director or other authorised signatory of that person or by any of the lawyers to that person;


(d)   a "ITM Finance  Document" or any other agreement or instrument is a reference to that ITM Finance Document or "Acquisition Document" or other agreement or instrument as amended or novated;


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


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


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


(h)   "including" shall be construed as meaning "including without limitations"; 
(i)     .an "obligation" means any duty, obligation or liability of any kind;
0)    a "right"  means any right, privilege, power, immunity or other interest or remedy of any kind;


(k)   a reference to "extraordinary administration" in respect of a person or assets which are subject to the laws of Italy is a reference to extraordinary administration (amministrazione straordinaria) under Italian law;


(I)    a reference to "insolvency proceedings" or "insolvency procedure" in respect of any person incorporated in Italy is a reference to any insolvency proceeding (procedura concorsuale) under the Bankruptcy Law;


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


(n)   unless otherwise specified a time of day is a reference to Brussels time;


    (o)   the "equivalent"  of  an  amount  specified in  a  particular  currency  (the  "specified currency amount"  shall  be 
         construed as a reference to  the amount  of  the other relevant currency which can be purchased with the 
       specified currency amount in the

29






		
	 
	London foreign exchange market at or about 11 a.m. on the date the calculation falls to be made for spot delivery, as conclusively determined by the ITM Facility Agent; and




{p)   words importing the plural include the singular and vice versa.




1.2.2     Section, clause and schedule headings are for ease of reference only.




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




1.2.4    A Default is "continuing" if it has not been remedied or waived.




1.3     Italian terms




In this Agreement, a reference to:


(a)   a "liquidator" includes a curatore;


(b)   a "winding-up, administration or dissolution" (and each of those terms) includes a person being declared bankrupt (fallimento);
(c)   a "step or procedure" taken in connection with insolvency proceedings for any person includes it formally making a proposal to assign its assets pursuant to Article 1977 of the Italian Civil Code (cessione dei beni ai crediton) or filing a petition for a concordato preventivo or entering into a similar arrangement for the majority of its creditors;


(d)   the "Italian  Civil Code" means the Italian Civil Code approved by the Royal Decree of


16th March, 1942, no. 267 as amended and supplemented from time to time;




(e)   the "Bankruptcy Law" means the Italian bankruptcy law set out in Royal Decree No


267 of 16th March 1942 of Italy as amended and supplemented from. time to time; and
(f)    for the purposes of the definition of "Facility Period" and the other relevant provisions of the ITM Finance Documents, an amount is "irrevocably" paid or discharged on the date on which payment of the relevant amount is not capable of being revoked pursuant to the Bankruptcy Law or upon such earlier date as may be agreed by the Majority ITM Lenders  acting  reasonably  following  a  financial  analysis  of  the  Borrower,  having obtained the advice of their legal counsel and having regard to the financial condition of the Borrower and any  other circumstance which could  trigger the revocation or discharge of such payment.











30






1.4    Third party rights


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




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




		
	1.4.3
	Notwithstanding any terms of any ITM Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.





31








SECTION 2


         THE FACILITIES


2     The Facilities


2.1     The Facilities
		
	  
	Subject to the terms of this Agreement, the ITM Lenders make available to the Borrower




		
	2.1.1       
	a euro revolving loan facility in an aggregate amount equal to the Total Revolving Facility Commitments; and


		
	2.1.2
	a euro term loan facility in an aggregate amount equal to the Total Term Loan Commitments


		
	2.2 
	ITM Finance Parties' rights  and obligations


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




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




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




3     Purpose


3.1     Purpose
The Borrower shall:
     3.1.1       utilise the Revolving Facility to finance its short term working capital requirements
  3.1.2      utilise all amounts borrowed by it under the Term Loan Facility to finance amounts payable by it, or any member 
of the Group, in purchasing or redeeming, in whole or in part, the outstanding notes


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



32






4     Conditions of Utilisation


4.1     Initial conditions precedent
		
	4.1.1 
	No Utilisation Request  may be delivered  unless  the ITM Facility Agent has received  all of the documents   and  other·  evidence   listed   in  Schedule 2  (Conditions  precedent)  in  form  and substance reasonably satisfactory  to the ITM Facility Agent.


		
	4.1.2
	The ITM Facility Agent shall notify the Company and the ITM Lenders promptly upon being so satisfied.




4.2     Further conditions precedent


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


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


4.2.2    in the case of a Revolving Loan, the ITM Facility Agent has received the evidence and the certificate referred to in 
clause 5.3.4;


4.2:3    in the case of a Term Loan:


(a) the ITM Facility Agent has received the evidence referred to in clause 5.3.7; and 


(b) the information contained in the certificate delivered by ITM pursuant to clause 5.3.7 (d)
    is true in all material respects;


4.2.4     the Repeating Representations to be made by each Obligor are true in all material respects; and 


4.2.5    the Outstanding Amount does not exceed and would not exceed as result of the proposed Loan,
the Maximum Indebtedness Amounts

33








SECTION 3


UTILISATION


5     Utilisation




5.1     Delivery of a Utilisation Request


The Facility may be utilised by delivery to the ITM Facility Agent of a duly completed Utilisation


Request not later than the Speqified Time.




5.2    Completion of a Utilisation Request




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




(a)   it identifies the Facility to be utilised;




(b)   it includes the information as to the principal amount (or its equivalent in euro) of the


Existing Secured Facilities outstanding as at the date of such Utilisation Request;




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


(d)   the currency  and  amount  of  the Utilisation  comply  with clause  5.3 (Currency  and amount);


(e)  the proposed Interest Period complies with clause 9 (Interest periods);




		
	(f)
	in relation  to the Revolving  Facility, ITM  attaches to it  the evidence  and certificate referred to in clause 5.3.4;




(g)   in relation to the Term Loan Facility, ITM attaches the documents and evidence referred to in clause 5.3.7;


(h)   in relation to the Term Loan Facility:


(i)       where such Utilisation is being made to purchase any Note, it specifies the bank account of  the person (such person  to be reasonably  satisfactory to the ITM Facility Agent) to which the relevant payment for the purchase of the Notes will be made; or


(ii)     where such Utilisation is being made to redeem the Note(s) issued in respect of the Bond, it specifies the 
        bank account of Luxco or its paying agent and attaches evidence {reasonably satisfactory to the ITM 
       Facility Agent) that the payment will





34






be made from Luxco or its paying agent to the holders of the Notes to redeem such Notes.


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


5.2.3  Not more than three Revolving Loans (including, for the avoidance of doubt, Rollover Loans)
may be borrowed in any Month.


5.3    Currency and amount  and evidence.


5.3.1    The currency specified in a Utilisation Request must be euro.


5.3.2    Subject to clause 5.3.3, multiple Utilisations are permitted in respect of the Facility.




5.3.3    The amount of any proposed Loan must be an amount which is not more than the Available


Facility and which is a minimum of €1,000,000 or, if less, the relevant Available Facility.


		
	5.3.4 
	A Utilisation Request for a Revolving Loan other than a Rollover Loan must be accompanied by: (a)   a list of invoices of ITM relating to the trade credit receivables to which the Utilisation


Request relates {which list shall specify for each invoice the issue date, the number, the applicable due .date for payment and the relevant amounts, provided that the due date for payment date for each such invoice is not be more than 150 days from the· issue date of the relevant invoice);


(b)   a certificate signed by a director or other authorised signatory of ITM confirming that ITM has instructed its debtors to pay the amounts due in respect of the trade credit receivables to which the Utilisation Request relates into the relevant Revolving Account and certifying that the amount requested under that Utilisation Request in respect of those trade credit receivables does not include any amounts which have already been requested under any other Utilisation Request in respect of the same trade credit receivables.


		
	5.3.5 
	Without prejudice to clause 5.3.3, the amount of a proposed Revolving Loan must be an amount which is no greater than 80 per cent. of the aggregate face value of the invoices included in the list referred to in cla.use 5.3.4.




		
	5.3.6 
	Without prejudice to clause 5.3.3, the amount of a proposed Term Loan must be an amount which is:






(a)   no greater than the purchase price of the Notes outstanding that are to be purchased or the redemption price in respect of the Notes outstanding in respect of the Bond that are
to be repaid; and



35










(b)   in the case of a Utilisation which is being used to purchase Notes the lesser of the purchase price of the relevant Notes and the principal amount of such Notes,


in each case on the Utilisation Date of such Term Loan.




5.3.7    A Utilisation Request for a Term Loan must be accompanied by:




(a)   copies of the order(s) to purchase Notes issued by or on behalf of Luxco, the Borrower or the Borrower's Subsidiaries (the "New Holder") or other evidence reasonably satisfactory to the ITM Facility Agent to confirm the purchase or redemption of the Note;


(b)   copy of the irrevocable instruction for theNotes to be deposited in the Bond Account;




(c)   unless otherwise agreed by the ITM Facility Agent, copy of an irrevocable instruction to the Paying Agent to promptly cancel the Notes upon receipt of the same from the New Holder;


(d)   in the case of a Utilisation which is being used to purchase Notes a certificate signed by an authorised signatory of ITM certifying that the difference between the purchase price of the relevant Notes and the principai amount of the relevant Notes is lower than the aggregate of the coupons that would have been payable in respect  of the relevant Notes (had such Notes not been purchased) after taking into account the overall cost to ITM of the Term Loan utilised to purchase the relevant Notes (calculated in accordance with GAAP);


(e)   evidence that the purchase of the Notes is through an authorised intermediary; and




(f)    in the case of a Utilisation which is being used to fund the purchase of the Notes by a member of the Titan Group where such Notes wUI be subsequently transferred by the Borrower  or  its  Subsidiaries, evidence  (reasonably  satisfactory to  the  ITM  Facility Agent) of the purchase price paid by the member of the Titan Group (the "Relevant Price") and either:


(i)       if the Relevant Price is less· than· the nominal amount of the Notes, evidence (reasonably satisfactory to the lntercreditor Agent) that the purchase price to be paid by the Borrower (or its Subsidiary) for the transfer of the Notes to it is equal to the Relevant Price; or


(ii)      if the Relevant Price is more than the nominal amount of the Notes, evidence (reasonably satisfactory to the lntercreditor Agent) that the purchase price to be paid by the Borrower (or its Subsidiary) for the transfer of the Notes to it is not less than the nominal amount of the Notes.



36








		
	5.3.8 
	The ITM Lenders  shall not be obliged to make any Term Loan if the aggregate of all Term Loans made by the ITM Lenders up to the date of an Utilisation Request, together with the amount of the Term Loan requested in such Utilisation Request, would exceed twice the value of EBIDTA of the Titan Group in respect of the most recently completed Relevant Period, as calculated by the ITM Facility Agent on the basis of the latest set or two sets of financial statements, as applicable, delivered pursuant to this Agreement, provided that when calculated for any period endingprior to 31 December 2006, the. calculation of EBITDA of the Titan Group shall be adjusted to provide a consolidated EBITDA of the Titan Group as if the Rome Group had formed part  of the Titan Group for  the entire period for  which such EBITDA  is  to be calculated.




		
	5.3.9 
	Subject to clause 5.3.10, the ITM Lenders shall not be obliged to make any Loan hereunder if as result of the making of the Loan requested in a Utilisation Request, the Outstanding Amount would exceed the Maximum Indebtedness Amount as at the Utilisation Date proposed in that Utilisation Request.




		
	5.3.10 
	The restrictions set out in clause 5.3.9 shall not apply (i) where the Loan is being utilised to redeem and cancel the Bond in full and the Borrower has delivered to the ITM Facility Agent evidence (reasonably satisfactory to the ITM Facility Agent) confirming that the Bond will be redeemed and cancelled in full; or (ii) where the Loan is being used to purchase the Bond in full and, unless otherwise agreed by the ITM Facility Agent, the Borrower has delivered to the ITM Facility Agent evidence reasonably satisfactory to the ITM Facility Agent) confirming that the Bond will be cancelled in full upon such purchase being completed.




5.4     ITM Lenders' participation


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




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


		
	5.4.3 
	The ITM Facility Agent shall notify each ITM Lender of the amount of each Loan and the amount of its participation in that Loan, in each case by the Specified Time.


5.4.4     Each ITM Lender shall make available:


(a)   its  participation  in  each  Term  Loan  by  paying  the  relevant  amount  into  the Bond


Account; and


(b)   its participation in each Revolving Loan by paying the relevant amount into the relevant


Revolving Account.



37








SECTION 4


REPAYMENT, PREPAYMENT AND CANCELLATION
6     Repayment


6.1     Repayment  of the Revolving Loans




6.1.1    ITM shall repay each Revolving Loan on the last day of its Interest Period.


6.1.2     Any amount repaid in accordance with this clause may be re-borrowed, provided that:




{a)   no  Revolving Loans  may  be  outstanding after  the Termination  Date for  Revolving


Facility; and


{b)   if any part of the Revolving Loan remains outstanding on the Termination Date for the Revolving Loan, ITM shall repay all such amounts {whether principal, interest or otherwise) that are outstanding on tnat Termination Date.




6.2    Repayment of the Term Loans


		
	6.2.1 
	ITM shall repay the Loan A in 16 Repayment Instalments on each Repayment Date provided that ITM shall repay the Loan A in full on the Termination Date.




		
	6.2.2 
	Each Repayment Instalment to be repaid in accordance with clause 6.2.1 shall be in an amount which reduces the Loan A by the amount set out opposite that Repayment Date in Schedule 9 (Repayment Schedule).




		
	6.2.3 
	ITM shall (subject to clause 6.3  (Extension Option) below) repay the Loan B in full on the Termination Date.




		
	6.2.4 
	Any part of the Facility which is repaid may not be re-borrowed.






		
	6.3
	Extension Option






		
	6.3.1 
	ITM may request that the maturity date for all or any part of the Loan B outstanding as at the Termination Date, be automatically extended by one (1) year (so that ITM shall repay such amounts in full on 31 October 2016) on the terms of this Agreement, by notice to the ITM Facility Agent no laler than 11.00  a.m (Milan time) not less than ten (10) Business Days prior to the Termination Date.




		
	6.3.2 
	If ITM does not exercise the Extension Option the outstanding Loan B shall be repaid in full on the Termination Date.




		
	6.3.3 
	For the avoidance of doubt, the Extension Option may be exercised by ITM once only.





38






		
	6.3.4 
	If the conditions set out in clause 6.2.5 below have been met, then the maturity date of each of the ITM Lenders' participations in the Loan B (or any part thereof) subject of the Extension Option shall be automatically extended pro rata to 31 October 2016 on the terms of this Agreement.




		
	6.3.5
	The ITM Lenders will only be obliged to comply with clause 6.2.4 above if the Borrower has notified the ITM Facility Agent in accordance with clause 6.2.1, the ITM Facility Agent has received the extension fee due from the Borrower pursuant to clause 11.5 (Extension Fee) and on the date of such notice and on the Termination Date:




(a}   no Default is continuing or would result from the proposed extension of maturity; and
(b)   the Repeating Representations to be made by each Obligor are  true in all material respects.


7     Prepayment and cancellation




7.1     Illegality




If it becomes  unlawful in any applicable jurisdiction  for an ITM Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan:


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




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




7.1.3          the Borrower shall repay that ITM Lender's participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the ITM Facility Agent has notified the Borrower or, if earlier, the date specified by the ITM Lender in the notice delivered to the  ITM  Facility  Agent  (being no  earlier  than  the  last  day  of  any applicable  grace  period permitted by law).


7.2     Voluntary cancellation




The Borrower may, if it gives the ITM Facility Agent not less than 5 Business Days' (or such shorter period as the Majority ITM Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of €2,000,000) of any Available Facility.  Any cancellation under this clause 7.2 (Voluntary Cancellation) shall reduce the Commitments of the ITM Lenders rateably.



39






7.3     Voluntary prepayment of Term Loans


		
	7.3.1
	Subject  to the other provisions of this clause 7 (Prepayment and cancellation) the Borrower may, if it gives the ITM Facility Agent not less than 5 Business Days' (or such shorter period as the Majority ITM Lenders may agree) prior notice, prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the amount of that Loan by a minimum amount of €2,000,000).




7.3.2     The Loan A may only be prepaid if:


(a)   the whole of the Loan B and the whole of the Term Loan B (as defined in the ITO Facility Agreement) under the ITO Facility have been prepaid or will be prepaid at the same time;
{b)   such Loan A and the Term Loan A (as defined in the ITO Facility Agreement) under the ITO Facility are prepaid at the same time in amounts which reduce each such loan by the same proportion.


		
	7.3.3
	Any prepayment of the Loan A under this clause 7.3 (Voluntary prepayment) shall satisfy the obligations under clause 6.1 (Repayment of Loans}, in inverse order.




7.4     .. Voluntary prepayment of Revolving Loans
The Borrower may, if it gives the ITM Facility Agent not less than 15 Business Days' (or such shorter period as the Majority ITM Lenders may agree) prior notice, prepay the whole or any part of a Revolving Loan.


		
	7.5
	Right of repayment and cancellation in relation to a single ITM lender






7.5.1    If:


{a)   any sum payable to any ITM Lender by an· Obligor is required to be increased under clause 12.2.3 (Tax gross-up); or


{b)   any ITM Lender claims indemnification from the relevant Borrower under clause 12.3
(Tax indemnity) or clause 13.1 (Increased costs),


the Borrower may, whilst the circumstance giving rise to the requirement or indemnification continues, give the ITM Facility Agent notice of cancellation of the Commitment of that ITM Lender and ·its  intention to procure the repayment of that ITM Lender's participation in the Loans.



40






7.5.2           On receipt of a notice referred to in clause 7.5.1 above, the Commitment of that ITM Lender shall immediately be 
      reduced to zero;


7.5.3       On the last day of each Interest Period which ends after the Borrower has given notice under clause 7.5.1 
    above (or, if earlier, the date specified by the relevant Borrower in that notice), the Borrower shall repay that ITM 
   Lender's participation in that Loan.


7.6     Mandatory Prepayment - Excess Cashflow


7.6.1     If for any financial year of the Titan Group ending on or after 31 December 2012 until the end of the Facility Period, the 
Debt Service Cover Ratio is greater than 1A:1, the Company shall procure that an amount equal to the Excess 
Cashflow shall be applied in prepayment of any outstanding Loans and any loans outstanding under the ITO Facility.


7.6.2    Any prepayment  under this clause 7.5 (Excess Cashflow) shall be made within 20 Business Days of delivery to the ITM
Facility Agent of the audited consolidated financial statements of the Titan Group under clause 19.1 (Financial 
statements) and shall be applied in the following order or priority:


(a)   first, in prepayment of the Loan B and the Term Loan B {as defined in the ITO Facility


Agreement) in amounts which reduce each such loan by the same proportion; and
(b)   secondly, in prepayment of  the Loan A and the Term Loan A (as defined in the ITM Facility Agreement) in amounts which reduce each such loan by the same proportion (and in satisfaction of the repayment obligations in respect of each such loan in inverse order of maturity).


7.7     Restrictions


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


		
	7.7.2 
	Any prepayment  under  this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs and the provisions of clause 7.6.3, without premium or penalty.




		
	7.7.3 
	Any prepayment made or to be made on or before 31 January 2008 shall be made together with a prepayment fee of 0.50% on the amount prepaid.




		
	7.7.4 
	Without prejudice to the obligations to pay Break Costs pursuant to clause 10.4 (Break Costs) (if appropriate), no prepayment fee shall be payable by the Borrower in respect of a prepayment of





41






a Term Loan made in connection with the restructuring of the Titan Group which involves that Term Loan (or an equivalent new facility) being assumed or made available to another member of the Titan Group provided that the Majority Senior Lenders (acting reasonably) have provided their written consent to the restructuring.


		
	7.7.5 
	Any other prepayment  under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs due in accordance with clause 10.4 (Break Costs), with no prepayment fee, premium or penalty.




		
	7.7.6 
	The Borrower may not re-borrow any part of a Loan which is prepaid.






7.7.7        Unless a contrary indication appears in this Agreement, any part of the Revolving Facility which is prepaid may 
be re-borrowed in accordance with the terms of this Agreement.


		
	7.7.8 
	The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the  Commitments  except  at  the  times  and  in  the  manner  expressly  provided  for  in  this Agreement.




		
	7.7.9 
	No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.




		
	7.7.10 
	If the ITM Facility Agent receives a notice under this clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to either the Borrower or the affected ITM Lender, as appropriate.



42








SECTION 5


COSTS OF UTILISATION


8    Interest




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


8.1.1    Margin; and


8.1.2    EURIBOR.


8.2     Payment of interest




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


8.3     Default interest




		
	8.3.1 
	If an Obligor fails to pay any amount payable by it under an ITM Finance Document on its due date, interest shall accrue on the Unpaid Sum from  the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to clause 8.3.2 below, is 1.5 per cent. higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the ITM Facility Agent (acting reasonably). Any interest accruing under this clause 8.3 (Default interest) shall be immediately payable by the Obligor on demand by the ITM Facility Agent.




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




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


(b)   the rate of interest applying·to the Unpaid Sum during that first Interest Period shall be 1.5 per cent. higher than the rate which would have applied if the Unpaid Sum had not become due.


		
	8.3.3 
	Default interest (if unpaid) arising on an Unpaid Sum will be calculated in accordance with the provisions of article 1283 of the Italian Civil Code but will remain immediately due and payable.



43






    
8.4     Notification of rates of interest
The  ITM Facility  Agent  shall  promptly  notify  the  ITM  Lenders  and  the  Borrower  of  the determination of a rate of interest under this Agreement.


8.5     Interest cap


If at the date of this Agreement the interest rate stated to be  payable under this Agreement (including default interest) in respect of any Facility exceeds the maximum amount permitted for the relevant  type of facility under  Italian Law 108/1996, as  amended, and Law. 24/2001 as amended (collectively the "Italian  Usury  Law"), then the interest rate payable by the Borrower hereunder shall be capped at the maximum amount permitted under such Italian Usury Law in relation to the relevant type of facility in each case.




9     Interest Periods




9.1     Duration of Interest Periods




		
	9.1.1 
	Each Interest Period shall start on the Utilisation Date or (if already made) on the last day of its preceding interest Period.




9.1.2     The duration of each Interest Period for will be three Months provided that:
(a)   subjectto sub-paragraph (b) of this clause.9.1.2, the first Interest Period shall end on the next Interest Payment Date;
(b)   where a Loan is made less than 30 days before an Interest Payment Date, the first Interest Period shall end on the second Interest Payment Date after the Utilisation Date for that Loan;


(c)   each  Interest  Period  other  than  the first  relating  to  a  Loan  shall end  on  the next succeeding Interest Payment Date; and


(d)   in respect of the Loan A, no Interest Period shall extend beyond a Repayment Date.


		
	9.1.3 
	Each Interest Period for a Revolving Loan shall start on the Utilisation Date in relation to that Revolving Loan and end on the last Business Day of the Month in which that Utilisation Date occurs.




		
	9.1.4 
	An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its Facility (except, in respect of the Term Loan 8, in the event that the Extension Option is exercised).



44








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


10     Changes to the calculation of interest




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


10.2        Market disruption


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


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




10.2.2        In this Agreement "Market Disruption Event" means: .


(a)   at or about noon on the Quotation Day for the relevant Interest Period the Screen
 Rate is not available and none or only one of the Reference Banks supplies a rate to
 the ITM Facility Agent to determine EURIBOR for euros for the relevant Interest Period;
 or
(b)   before close  of business  in London on the Quotation Day for the relevant Interest
 Period, the ITM Facility Agent receives notifications from an ITM Lender or ITM Lenders
 (whose participations in a Loan exceed 30 per cent. of that Loan) that the cost to it
 or them of obtaining matching  deposits in the Relevant Interbank Market would be
 in excess of EURIBOR.



45






10.3        Alternative basis of interest  or funding


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


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


10.4        Break Costs




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




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


11     Fees




11.1        Commitment fee




11.1.1        The Borrower shall pay to the ITM Facility Agent (for the account of each ITM Lender) a fee computed at the 
rate of:


{a)   0.10 per  cent.  per  annum  on  that iTM  Lender's  Available Commitment under  the Revolving Facility 
from the date of this Agreement to the end of the Availability Period applicable to the Revolving Facility;


(b)   0.25 per cent. per annum on that ITM Lender's Available Commitment under the Term Loan Facility from  
the date  of this Agreement to the end of the Availability Period applicable to the Term Loan Facility.




11.1.2        The accrued commitment fee is payable as follows:




(a)   in relation to the Revolving Facility, the first payment shall be made on 30 April 2006, and the subsequent 
payments  shall be made on each subsequent Financial Quarter Day which occurs during the Availability Period 
for that Facility and on the last day of the Availability Period for that Facility and, if cancelled in full, on the 
cancelled amount of the relevant ITM Lender's Commitment at the time the cancellar     is effective; and



46






(b)   in relation to the Term Loan Facility, the first payment shall be made on 30 April 2006, and the subsequent payments shall be made on each subsequent Financial Quarter Day which occurs during the Availability Period and on the last day of the Availability Period for that Facility and, if cancelled in full, on the cancelled amount of the relevant ITM Lender's Commitment at the time the cancellation is effective.


11.2         Other fees


The Company shall pay to the Arranger {for its own account) the other fees in the amounts and at the times agreed in a Fee Letter.


11.3         Agency fee


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


11.4     Utilisation fee




		
	11.4.1 
	The Borrower shall pay to the ITM Facility Agent (for the account of each ITM Lender) a flat utilisation fee of 0.50% of the aggregate of all the Term Loans outstanding on the last day of the Availability Period applicable to the Term Loan Facility.




11.4.2     The utilisation fee shall be payable on the last day of the Availability Period applicable to the


Term Loan Facility.


 11.5     Extension fee


If ITM exercises the Extension Option, ITM shall pay to the ITM Facility Agent (for the account of each ITM Lender) an extension fee in an amount equal to 0.30% of the amount of the Loan B which is the subject of the Extension Option, such extension fee to be payable on or before the Termination Date.

47








SECTION 6


ADDITIONAL PAYMENT OBLIGATIONS




12     Tax gross  up and indemnities




12.1    Definitions




12.1.1        In this Agreement:


"Protected Party" means an ITM Finance Party which is or will be subject to any liability, or required  to make
 any  payment,  for or on account  of Tax  in relation  to a sum received or receivable (or any sum deemed for
 the purposes of Tax to be received or receivable) under an ITM Finance Document to the extent the relevant
 liabilities or required payments are not due to fraud or gross negligence of the Protected Party.


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


"Tax Deduction" means  a deduction or withholding for or on account of Tax from a payment under an ITM
 Finance Document.


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


12.1.2        Unless  a contrary  indication  appears,  in  this  clause  12  (Tax  gross  up  and indemnities) a reference to
 "determines" or "determined" means a determination made in the absolute discretion of the person making
 the determination.


12.2        Tax gross up




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


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








12.2.3        If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that
 Obligor shall be increased  to an amount which {after making any Tax Deduction) leaves an amount equal to
 the payment which would have been due if no Tax Deduction had been required.









48






		
	12.2.4 
	If an Obligor is required  to make a Tax Deduction,  that Obligor  shall make that Tax Deduction and any payment required in connection  with that Tax Deduction  within the time allowed and in the minimum amount required by law.




12.2.5     An Obligor shall not be required to make an increased payment  to an ITM Lender under clause
12.2.3 for a Tax Deduction in respect  of a Tax from a payment  of interest on a Loan if, on the date on which the payment falls due, such payment  could have been made to the relevant ITM Lender without  a Tax Deduction  if it was a Qualifying  ITM Lender  but, on that date, that ITM Lender is not or has ceased to be a Qualifying ITM Lender  other than as a result of any change after the date it became an ITM Lender under this Agreement  in, or in the interpretation, administration,  or application  of any law or treaty, or any published  practice  or concession of any relevant taxing authority.
		
	12.2.6 
	Within thirty days of making either a Tax Deduction  or any payment required in connection  with that Tax  Deduction,  the Obligor  making  that  Tax  Deduction  shall  deliver  to the  ITM  Facility Agent for the ITM Finance Parties entitled  to the payment  evidence  reasonably satisfactory  to that  ITM  Finance  Parties  that  the  Tax  Deduction   has  been  made  or  (as  applicable)   any appropriate payment paid to the relevant taxing authority.




12.3     Tax indemnity


12.3.1     The Borrower shall (within three Business  Days of demand  by the ITM Facility Agent) pay to a Protected  Party  an 
 amount  equal  to  the  loss,  liability   or  cost  which  that  Protected   Party determines  will be or has been (directly 
 or indirectly)  suffered  for or on account of any Tax by that Protected Party in respect of an ITM Finance Document.


12.3.2     Clause 12.3.1 above shall not apply:


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


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


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




          if that Tax is imposed on or calculated  by reference to the net income received  or receivable (but not  
         any  sum  deemed  to be received  or receivable)  by that ITM Finance Party; or


(b)   to the extent a loss, liability or cost is compensated for by an increased payment under clause 12.2 (Tax gross-up).




        

49






12.3.3        A  Protected  Party making, or intending to make  a claim  under  clause 12.3.1 above shall promptly notify the
 ITM Facility Agent of the event which will give, or has given, rise to the claim, following which the ITM Facility
 Agent shall notify the Borrower.


12.3.4        A Protected Party shall, on receiving a payment from an Obligor under this clause 12 (Tax gross up and
 indemnities), notify the ITM Facility Agent.


12.4        Tax Credit


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


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


12.4.2        that ITM Finance Parties has obtained, utilised and retained that Tax Credit, 


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


12.5         Stamp taxes
The  Borrower  shall  pay  and,  within three Business  Days  of  demand,  indemnify each ITM
 Finance Party against any cost, loss or liability that ITM Finance Parties incurs in relation to all
 stamp  duty,  registration  and  other  similar  Taxes  payable  in  respect  of  any  ITM  Finance
 Document.
12.6        Value added tax
12.6.1        All amounts set out, or expressed to be payable under an ITM Finance Document by any Party to 
 an ITM  Finance  Party  which (in  whole or  in part)  constitute  the  consideration for  VAT purposes
 shall be deemed to be exclusive of any VAT which is chargeable on such supply, and accordingly,
 subject to clause 12.6.3  below, if VAT is chargeable on any supply made by any ITM Finance
 Parties to any Party under an ITM Finance Document, that Party shall pay to the ITM  Finance 
 Parties (in  addition  to and at the same  time as paying  the consideration) an amount equal to
 the amount ofthe VAT (and such ITM Finance Parties shall promptly provide an appropriate VAT
 invoice to such Party).


12.6.2        If VAT is chargeable on any supply made by any ITM Finance Parties (the "Supplier")  to any other ITM 
Finance Parties (the "Recipient") under an ITM Finance Document, and any Party (the "Relevant Party") is 
required by the terms of any ITM Finance Document to pay an amount equal to  the  consideration for  such  
supply  to  the Supplier (rather  than being required  to reimburse  the Recipient in respect  of  that 
consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such 
amount} an amount equal to the

50






amount of such VAT. The Recipient will promptly pay to the Relevant Party an amount equal to any credit or repayment from the relevant tax authority which it reasonably determines relates to the VAT chargeable on that supply.


12.6.3        Where an ITM Finance Document requires any Party to reimburse an ITM Finance Party for any costs or
 expenses, that Party shall also at the same time pay and indemnify the ITM Finance Parties against all VAT
 incurred by the ITM Finance Parties in respect of the costs or expenses to the extent that the ITM Finance
 Parties reasonably determines that neither it nor any other member of  any group of  which it  is  a  member 
 for  VAT  purposes  is  entitled  to credit  or repayment from the relevant tax authority in respect of the VAT.


13        Increased costs




13.1        Increased costs




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


13.1.2        In this Agreement "Increased Costs" means:




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


(b)   an additional or increased cost; or


(c)   a redu.ction of any amount due and payable under any ITM Finance Document,


which is incurred or suffered by an ITM Finance Party or any of its Affiliates to the extent that it
 is attributable to that ITM Finance Parties having entered into its Commitments or funding or
 performing its obligations under any ITM Finance Document.


13.2        Increased  cost claims




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


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

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13.3        Exceptions




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


(a}   attributable to a Tax Deduction required by law to be made by an Obligor;
(b)   compensated for by clause 12.3 (Tax indemnity} (or would have been compensated for under clause 12.3
 (Tax indemnity) but was not so compensated solely because any of the exclusions in clause 12.3.2 (Tax indemnity)
 applied); or


(c)   attributable to the wilful breach by the relevant ITM Finance Parties or its Affiliates of any law or regulation.


13.3.2        In this clause 13.3 (Exceptions}, a reference to a "Tax Deduction" has the same meaning given to the term in
 clause 12.1 (Definitions).


14        Other indemnities


14.1        Currency indemnity


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


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




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


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


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

52






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


14.2.1    the occurrence of any Event of Default;


14.2.2        a failure by an Obligor to pay any amount due under an ITM Finance Document on its due date, including
 without limitation, any cost, loss or liability arising as a result of clause 27 (Sharing among the ITM Finance
 Parties);


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


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


  14.3         Indemnity to the ITM Facility  Agent


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


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


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


15        Mitigation by the ITM lenders


15.1        Mitigation


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


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

53






15.2        Limitation of liability




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


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




16     Costs and expenses


16.1         Transaction expenses


The Borrower  shall promptly  on  demand pay  the ITM Facility  Agent  and  the Arranger the amount of all
 reasonable costs and expenses (including legal fees) incurred by any of them in connection with the
 negotiation, preparation, printing, execution of {but not costs of syndication after the date of this Agreement):




16.1.1        this Agreement and any other documents referred to in this Agreement; and 


16.1.2        any other ITM Finance Documents executed after the date of this Agreement. 


16.2        Amendment costs


If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to
 clause 28.9 (Change of currency), the Borrower shall, within three Business Days of demand, reimburse the
 ITM Facility Agent for the amount of all costs and expenses (including legal  fees}  incurred  by  the  ITM 
Facility  Agent in responding  to, evaluating, negotiating or complying with that request or requirement.


16.3         Enforcement costs


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

54










SECTION 7
GUARANTEE




17     Guarantee and indemnity




17.1     Guarantee.and indemnity


Each ITM Guarantor irrevocably and unconditionally, jointly and severally:


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


17.1.2    undertakes with each ITM Finance Party that whenever the Borrower does not pay any amount when due
 under or in connection with any ITM Finance Document, that ITM Guarantor shall immediately on demand 
pay that amount as if it was the principal obligor; and




17.1.3        indemnifies each ITM Finance Party immediately on demand against any cost, loss or liability suffered  by  that 
 ITM  Finance  Parties ·if  my   obligation guaranteed by  it  is  or  becomes unenforceable, invalid or illegal. 
 The amount of the cost, loss or liability shall be equal to the amount which that ITM Finance Parties would
 otherwise have been entitled to recover.


17.2    Continuing guarantee


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


17.3     Reinstatement


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


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


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


17.4     Waiver of defences


The obligations of each ITM Guarantor under this clause 17 (Guarantee and indemnity) will not be affected by an act, omission, matter  or thing which, but for this clause, would reduce, release

55










or prejudice  any of its obligations under this clause  17 (Guarantee and indemnity)  (without


limitation and whether or not known to it or any ITM Finance Parties) including:




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




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




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


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




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






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




17.4.7        any insolvency or similar proceedings. 




17.5        Immediate recourse
Each ITM Guarantor waives any right it may have of first requiring any ITM Finance Parties (or any trustee or
agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any
person before claiming from that ITM Guarantor under this clause 17 (Guarantee and indemnity)   This waiver
applies irrespective of any law or any provision of an ITM Finance Document to the contrary.


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




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

56












17.6.2        hold in an interest-bearing suspense account any moneys received from any ITM Guarantor or on account of
that ITM Guarantor's  liability under this clause 17 (Guarantee and indemnity).






17.7        Deferral of ITM Guarantor's rights


Until all amounts which may be or become payable by the Obligors under or in connection with the ITM
Finance Documents have been irrevocably paid in full and unless the ITM Facility Agent otherwise directs, no
ITM Guarantor will exercise any rights which it may have by reason of performance by it of its obligations
under the ITM Finance Documents:




17.7.1        to be indemnified by an Obligor;




17.7.2        to claim any contribution from any other ITM Guarantor of any Obligor's obligations under the
ITM Finance Documents; and/or






17.7.3        to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the ITM
Finance Parties  under the ITM Finance Documents or of any security taken pursuant to, or in connection with,
the ITM Finance Documents by any ITM Finance Parties.
     
17.8     Limitation of ITO's liability under the Guarantee




The  obligations  of ITO  under  this clause  17  (Guarantee  and indemnity) in respect  of  the obligations and liabilities of the Borrower shall at any given time be limited to the greater of:


(a)   eighty per cent. (80%) of the net worth of ITO as reflected in its most recent annual audited accounts at that time, and


(b)   €40,000,000 or its equivalent in any currency.




17.9         Additional security


This guarantee is in addition to and is not in any way prejudiced by any other guarantee or
Security now or subsequently held by any ITM Finance Parties.

57






SECTION 8


REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT


18     Representations


Each   Obligor   makes   the   representations   and   warranties   set   out   in   this   clause   18 (Representations) to each ITM Finance Parties.


18.1        Status


    18.1.1        It is a corporation, duly incorporated .and validly existing under the law of its jurisdiction of incorporation.


     18.2        Binding obligations
        
The obligations expressed to be assumed .by it in each ITM Finance Document are, subject to any general
principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant
to clause 4 (Conditions of Utilisation) and Schedule 2 (Conditions Precedent), legal, valid, binding and
enforceable obligations.


     18.3         Non-conflict with other obligations


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


18.3.1        any Ia/( or regulation applicable to it;


18.3.2        its or any of its Subsidiaries' constitutional documents, except, insofar as this representation applies to the
NewCo Share Pledge, the ITO Share Pledge and the ITM Share Pledge, clause 7.2 of the by-laws of ITM, ITO
and NewCo in the 60 days following execution of this Agreement; or




18.3.3        any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries'
assets.


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



58








18.5     Validity and admissibility in evidence


All Authorisations required or desirable:


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


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


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


18.6         Governing  law and enforcement




18.6.1        The choice of English law as the governing law of the ITM Finance Documents governed by


English law will be recognised and enforced in its jurisdiction of incorporation.




18.6.2        Any judgment obtained in England in relation to an ITM Finance Document governed by English law will be
recognised and enforced in its jurisdiction of incorporation.


18.7     Deduction  of Tax


It is not required to make any deduction for or on account of Tax from any payment it may make under
any ITM Finance Document.


18.8         No filing or stamp taxes


Under the law  of its jurisdiction of incorporation it is  not necessary  that  the ITM  Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that  any  stamp, registration  or  similar  tax  be  paid  on  or  in  relation  to  the  ITM  Finance Documents or the transactions contemplated by the ITM Finance Documents except for taxes imposed by Italy and required in connection with the Security Documents as specified in any of the legal opinions to be delivered pursuant to clause 4.1 (Initial conditions precedent) or as applicable upon  occurrence  of  a "caso  d'uso" (case  of  use) or  of "enunciazione"  (explicit reference), according to articles 6 and 22 of the Presidential Decree n. 131, dated 26 April 1986.


18.9        No default


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


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

59










18.10    No misleading information




18.10.1    All information provided by any member of the Titan Group to the ITM Finance Parties for the purposes of the
transaction contemplated in the ITM Finance Documents (collectively "Information") 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.


18.10.2    The financial projections contained in the Business Plan and the Revised Business Plan (as applicable) have
been prepared on the basis of recent historical information and on the basis of reasonable assumptions.




18.10.3    To the best of its knowledge, having made reasonable enquiry nothing has occurred or been omitted from the
Information and no information has been given or withheld that results in that Information being untrue or
misleading in any material respect.


18.10.4    Any information provided in the Admission Document was to the best of its knowledge in accordance with the
facts and contains no omission likely to affect its import at the date such document was published.


18.11    Structure Memorandum




18.11.1        The Structure Memorandum:
    
(a)   shows all members of the Titan Group and contains descriptions which in all material respects are true,
 complete and correct of the corporate ownership structure of the Titan Group; and


(b)   shows all inter company loans between members of the Rome Group as the date of its delivery,


except to the extent stated in a footnote in the Structure Memorandum.


18.12     Existing Debt Chart


As  at  the  date  of  its  delivery,  the  Existing  Debt  Chart  provides  accurate  details  of  all indebtedness owed by the Rome Group to third parties as at the date falling 15 days prior to the date of its delivery and a projection of such indebtedness of the Borrower and ITM as at the
date of delivery (such projection to be prepared on the basis of reasonable assumptions).




18.13        Original Financial statements




18.13.1        Its Original Financial Statements were prepared in accordance with GAAP consistently applied.




18.13.2         Its  Original  Financial  Statements  fairly  represent  its  financial  condition  and  operations
(consolidated) during the relevant financial year.

60








18.13.3    There has been no material adverse change in its business or financial condition (or the business or 
consolidated financial condition of the Titan Group or Rome Group) since the date on which such Original 
Financial Statements were drawn up.


18.14    Pari passu ranking




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


18.15    Representations on the Acquisition Documents




18.15.1    To the best of its knowledge on the date of this Agreement, no representation or warranty (as qualified by any
related disclosure letter, Acquisition Document or schedule to an Acquisition Document) given by any party  in
an  Acquisition Document  is untrue or misleading  in any material respect.


18.15.2        The Acquisition Documents contain all the material terms of the Acquisition.




18.16        No proceedings pending or threatened


No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency  which, if
adversely  determined, might  reasonably  be expected to have  a  Material Adverse Effect have been started
or threatened against it or any of its Subsidiaries.


18.17        Status of Security


Each Security Document confers or following execution will confer (in each case on proper registration  or 
notification  thereof,  as  the case  may  be)  valid, fully  perfected first  ranking Security over the relevant
assets securing all the obligations expressed to be secured by that Security Document and those Security
other than any obligation mandatorily preferred by law.


18.18        Immunity




18.18.1        The execution by it of each ITM Finance Document to which it is a party constitutes, and the exercise by it of
its rights and performance of its obligations under each ITM Finance Document will constitute, private and
commercial acts performed for private and commercial purposes; and


18.18.2        It will not be entitled to claim immunity from suit, execution, attachment or other legal process in any 
proceedings  taken  in  its  jurisdiction  of  incorporation  in  relation  to  any  ITM  Finance Document







61






18.19     Insolvency Proceedings


It has not taken any steps and, to its knowledge, no steps have been taken, for its winding up or dissolution, bankruptcy, extraordinary administration or any other insolvency proceedings or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of all or any of its assets.


   18.20        Corporate benefit


The entry into and performance of its obligations under each ITM Finance Document to which it is a party is in
its commercial interests and to its corporate benefit and the competent corporate bodies have assessed and
satisfied themselves as to the existence of such corporate benefit.


18.21        Times for making representations


   18.21.1    The representations set out in this clause are made on the date of this Agreement.


   18.21.2    Unless a representation is expressed to be given  at a specific date and except for those in clauses 18.9.2,
18.10, 18.11, 18.12 and 18.15.1, each representation is deemed to be repeated by each Obligor on the date of
each Utilisation Request and on the first day of each Interest.Period.




  18.21.3        When a representation is repeated, it is applied to the circumstances existing at the time of repetition.


19     Information undertakings
The  undertakings in this clause 19 (Information undertakings) remain in force from the date of this Agreement until the end of the Facility Period.


19.1     Financial statements


The Borrower.shall supply to the ITM Facility Agent in sufficient copies for all the ITM Lenders:


19.1.1        as soon as the same become available, but in any event within 180 days after the end of each relevant 
financial years:
(a)   its audited financial statements (consolidated where the financial statements
       have been prepared on such basis) and its audited balance sheet (bilancio
      civilistico) for that financial year; and


(b)   the audited consolidated financial statements  of the Company for that financial year;


       and


(c) the audited financial statements of ITO for that financial year
        









62






19.1.2        as soon as the same become available, but in any event within 90 days after the end of each half of each
relevant     financial years:


(a)   its  financial  statements  (consolidated where  the  financial  statements  have  been prepared-on such 
basis) for that financial half year;


(b)   the consolidated financial statements of the Company for that financial year; and




(c)   the financial statements of ITO for that financial year.


19.2        Compliance Certificate




19.2.1        The Borrower shall supply to the ITM Facility Agent, with each set of financial statements delivered pursuant to
clause 19.1.1 or 19.1.2 (Financial statements), a Compliance Certificate setting out (in reasonable  detail)
computations as  to compliance with clause 20 (Financial covenants) as at the date as at which those financial
statements were drawn up and at any applicable Calculation Date.


19.2.2        Each Compliance Certificate shall be signed by two directors of the Borrower and, if required to be delivered
with any audited financial statements delivered pursuant to clause 19.1 (Financial statements) accompanied
by a report from the auditors of the Company, which report shall be in form and substance reasonably
satisfactory to the ITM Facility Agent.


19.3        Requirements as to financial statements


19.3.1        Each set of financial statements to be delivered pursuant to clause 19.1 (Financial statements) shall be
certified by a director of the relevant company as fairly representing the financial condition of such company
as at the date as at which those financialstatements were drawn up.


19.3.2        The Borrower shall procure that each set of financial statements delivered pursuant to clause 19.1 (Financial 
statements) is prepared using the applicable GMP.




19.3.3        The Borrower shall procure that each set of financial statements of each ITM Guarantor delivE)red pursuant
to clause 19.1 (Financial statements) is prepared using GAAP, accounting practices and financial reference
periods consistent with those applied in the preparation of the Original Financial Statements of that ITM
Guarantor unless, in relation to any set of financial statements, it notifies the ITM Facility Agent that there has
been a change in GMP, the accounting practices or reference periods and the auditors of the relevant ITM
Guarantor deliver to the ITM Facility Agent:




(a)   a description of any change necessary for those financial statements to reflect the GMP,
 accounting practices and reference periods upon which that the Original Financial Statements of the
 relevant ITM Guarantor were prepared; and



63






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


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


19.4     «nformation:miscellaneous


Each Obligor shall supply to the ITM Facility Agent (in sufficient copies for all the ITM Lenders, if
the ITM Facility Agent so requests):




     19.4.1    all  documents  dispatched  by  it  to its  shareholders  (or  any  class  of them) or its  creditors generally at the
same time as they are dispatched;


19.4.2        promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings
which are current, threatened or pending against any member of the Titan Group, and which might, if
adversely determined, have a Material Adverse Effect;


19.4.3    promptly all material details of any material claim under the Acquisition Documents;




19.4.4        promptly any amendments to the Acquisition Documents made following the execution of this
Agreement;
    




19.4.5        promptly, such further information regarding the financial condition, business and operations of any member of
the Titan Group as any ITM Finance Parties (through the ITM Facility Agent) · may reasonably request;


19.4.6        by  no later  than 30 June  201Q, a revised business  plan  of the Titan Group (the "Revised Business Plan") 
for the period from 2009 to 31 December 2014, in the same format as the Business Plan, revised to take in to
account all material changes in the financial and economic position of the Titan Group from the date of the
Business Plan to the date of preparation of the Revised Business Plan;


19.4.7        promptly  upon  having  determined  to  acquire  any  company  or  merge  with or  into  another company
proceed to any disposal of their assets, or to exercise any of the options referred to in clauses 21.6.2 and
21.7.3 below, a notice informing the ITM Facility Agent .of any such intention, together with a detailed
memorandum of the proposed transaction and a certificate signed by 2 (two) duly authorised representatives
confirming that in their reasonable opinion having made

64






due enquiry with appropriate professional advisers, such transaction will not lead to a Material
Adverse Effect.
        
19.5        Notification of default


19.5.1        Each Obligor shall notify the ITM Facility Agent of any Default (and the steps, if any, being taken to remedy it)
promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already
been provided by another Obligor).
   
   19.5.2        Promptly upon. a request by the ITM Facility Agent in circumstances where the ITM Facility Agent has
reasonable grounds for believing that a Default has occurred and is continuing, the Borrower shall supply to
the ITM Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no
Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to
remedy it).


19.6        "Know your customer" checks




19.6.1        If:




(a)   the introduction of or any change in.(or in the interpretation, administration or application
 of) any law or regulation made after the date of this Agreement; 


(b)   any change in the status of an Obligor after the date of this Agreement; or


(c)   a proposed assignment or transfer by an ITM Lender of any of its rights and obligations
under this Agreement to a party that is not an ITM Lender prior to such assignment or transfer;


obliges the ITM Facility Agent or any ITM Lender (or, in the case of paragraph (c) above, any 
prospective new ITM Lender) to comply with "know your customer" or similar identification 
procedures in any jurisdiction in circumstances where the necessary information is not already 
available to it, each. Obligor shall promptly upon the request of the ITM Facility Agent or any ITM 
Lender  supply, or  procure  the  supply of,  such  documentation and  other evidence as  is 
reasonably requested by the ITM Facility Agent (for itself or on behalf of any ITM Lender) or any ITM 
Lender (for itself or, in the case of the event described in paragraph (c) above, on behalf of any 
prospective new ITM Lender) in order for the ITM Facility Agent, such ITM Lender or, in the case of 
the event described in paragraph (c) above, any prospective new ITM Lender to carry out and be 
satisfied it has complied with all necessary "know your customer" or other similar checks under all 
applicable laws and regulations pursuant to the transactions contemplated in the ITM Finance 
Documents.




19.6.2        Each ITM Lender shall promptly upon the request of the ITM Facility Agent supply, or procure the supply of, 
such documentation and other evidence as is reasonably requested by the ITM

65






Facility Agent (for itself) in order for the ITM Facility Agent to carry out and be satisfied it has complied with all
necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to
the transactions contemplated in the ITM Finance Documents.


20    Financial covenants
20.1.1     The Obligors shall ensure that on each Calculation Date from and including 30 June 2011 until the end of the Facility Period the following semi-annual financial covenants are met:


·  (a)     the ratio of EBITDA of the ·Titan Group to Consolidated Net Interest Payable of the


Titan Group shall not be at any time less than:




(i)     2.95:1 for the Calculation Date falling on 30 June 2011;


(ii)     3.70:1 for the Calculation Date falling on 31 December 2011;


{iii)     4,35:1 for the Calculation Date falling on 30 June 2012; and


(iv)     5.00:1 for each Calculation Date thereafter.




(b)   the ratio of aggregate Net Financial Indebtedness of the Titan Group (including for the avoidance of doubt FinanCial Indebtedness created under any ITM Finance Document) to EBITDA shall not at any time be greater than:


(i)     5.00:1 for the Calculatioh Date falling on 30 June 2011;




(ii) 3.75:1 for the Calculation Date falling on 31 December  2011; (iii) 3.00:1 for the Calculation Date falling on 30 June 2012; and 
(iv)2.20:1 for each Calculation Date thereafter.
{c)   the ratio of aggregate Net Financial Indebtedness of the Titan Group (including for the avoidance of doubt Financial Indebtedness created under any ITM Finance Document) to Net Worth shall not at any time be greater than:
(i)     1.78:1 for the Calculation Date falling on 30 June 2011;
(ii)      1.60:1 for the Calculation Date falling on 31 December 2011; (iii) 1.45:1 for the Calculation Date falling on 30 June 2012; and (iv) 1.10:1 for each Calculation Date thereafter.


20.1.2         The Obligors shall ensure that on each Calculation Date from and including 31 December 2012 until the end of 
the Facility Period (   her than the Calculation Dates falling on 31 December

66






2013 and 30 June 2014) the Debt Service Cover Ratio calculated on a rolling 12 month basis shall not be less 
than 1.10:1.


20.1.3    Subject to clauses 20.1.4 to 20.1.6 the financial covenants set out in this clause 20 shall be calculated on each 
Calculation Date in accordance with the applicable GAAP and tested by reference to each of the financial 
statements and/or each Compliance Certificate delivered pursuant to clauses 19.1 and 19.2.


20.1.4        The financial covenants set out this clause 20 shall be calculated in accordance with GAAP 
applicable to the Company· at the date of 'this Agreement, notwithstanding that GAAP may 
change after the date of this Agreement.


20.1.5        For the purpose of calculating compliance with the financial covenants for a Calculation Date 
on 31 December in any year, the rate of exchange for the conversion of any currency used in 
the preparation of the audited balance sheet of any company shall be the same as that used in 
the audited profit and loss account, notwithstanding that GAAP may require different exchange 
rates to be used.


20.1.6        When calculating compliance with the financial covenants for a Calculation Date on 30 June in 
any year, the rate of exchange for the conversion of any currency used shall be the average of 
the rates of exchange used in the preparation of the profit and loss account in (i) the audited 
financial statements for the financial year ending on the preceding 31 December; and (ii) the 
unaudited financial statements for the 6 months ending on such 30 June, and the same rate of 
exchange shall be applied to the unaudited balance sheet of any company and the unaudited 
profit and loss account, notwithstanding that GAAP may require different exchange rates to be
used.
                    
21     General undertakings


The undertakings in this clause 21 (General undertakings) remain in force from the date of this
Agreement until the end of the Facility Period.




21.1         Purpose
Each Obligor must ensure that that each Utilisation under a Facility is used for one of the 
purposes specified for the Facility in clause 3 {Purpose).




21.2        Authorisations


Each Obligor shall promptly:




21.2.1        obtain, comply with and do all that is necessary to maintain in full force and effect; and




21.2.2        supply certified copies to the ITM Facility Agent of,









67






any  Authorisation required  under  any  law  or  regulation  of  its  jurisdiction  of incorporation  to enable it to perform its obligations  under the ITM Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence  in its jurisdiction of incorporation of any ITM Finance Document.


21.3     Compliance with laws


Each Obligor shall comply in all respects  with all laws to which it may be subject, if failure so to comply   would  materially   impair  its  ability  to  perform  its  obligations  under  the  ITM  Finance Documents.


21.4     Paripassu ranking
Each  Obligor must ensure that its payment obligations  under  the ITM Finance  Documents rank at  least  pari passu  with  all  its  other  and  future  unsecured payment  obligations,  except  for obligations  mandatorily  preferred by law applying to companies generally.


21.5        Negative pledge


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




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


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


(b)   sell, transfer  or otherwise  dispose  of any of its receivables on recourse  terms unless entered
 into in respect  of Permitted Financial Indebtedness;


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


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


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


21.5.3        No Obligor incorporated in Italy shall (and shall ensure that no other member  of the Titan Group incorporated
in Italy will) segregate  assets  for the purpose  of article 2447-bis  of the Italian Civil Code ("Patrimoni
Destinati ad uno Specifico Affare'J nor shall it (and shall ensure that no other member of the Titan Group
incorporated in Italy will) issue any class of stock or other financial instruments under  article  2447-ter  of the
Italian Civil Code  without  the prior  written consent  of the lntercreditor Agent (acting on the instructions of the
Majority Senior Lenders)

68










21.5.4        Clauses 21.5.1 and 21.5.2 above do not apply to Permitted Security Interests.


21.6         Disposals


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


21.6.2        Clause 21.6.1 above does not apply to Permitted Disposals. 
        
21.7        Merger and Acquisitions


21.7.1        No Obligor shall (and shall ensure that no other member of the Titan Group will) enter into any amalgamation, 
demerger, merger or corporate reconstruction without the prior written consent of the Majority Senior lenders.


21.7.2        No Obligor shall (and shall ensure that no other member of the Titan Group will) make an acquisition of a
company without the prior consent of the Majority Senior Lenders.


21.7.3        Clause 21.7.2 above shall not apply to Permitted Acquisitions. 


21.8        Hedging


The Borrower shall comply in all material respects with the terms of the Hedging Policy. 


21.9        Security Interests


21.9.1        Each Obligor shall maintain and preserve the Security (and ensure that such Security is maintained and 
preserved) created by the Security Documents and the priority created by the Security Documents.


21.9.2        Each Obligor shall ensure that the lntertractor USA Share Pledge is executed by not later than 30 Business 
Days from the date on which the lntercreditor Agent has provided the Borrower with a draft thereof and that a 
legal opinion of a reputable US firm in relation to the lntertractor USA Share Pledge is delivered to the lntercreditor 
Agent in a form and substance reasonably satisfactory to the lntercreditor Agent.


21.9.3        If the Revised Business Plan delivered pursuant to clause 19.4.6 shows a deterioration in the financial 
projections for the Titan Group in respect of the figures shown in the Business Plan, such that the Financial 
Covenants are projected to be breached or require further amendment, then the Obligors and the lntercreditor 
Agent shall meet to discuss the execution by Material Companies of such further Security over the assets of a 
Material Company as may reasonably be required by the lntercreditor Agent, such Security to be in a form and 
substance satisfactory to the lntercreditor Agent, acting reasonably

69






21.10        Syndication




      21.10.1        Each Obligor will give the Arranger all the assistance it reasonably requires to facilitate the 
syndication of the Facility.


        
     21.10.2        Each Obligor will provide such further information as the Arranger may reasonably require for the  
purpose  of  syndication  of  the  Facility  including  (i)  promptly  providing  all  reasonably. requested  
financial   and   other   information  in  its  possession,  including  information  and projections 
prepared by it or its advisers; and (ii) making its senior officers available to attend a reasonable 
number of presentations and/or site visits to be granted, to prospective Lenders at reasonable 
times upon reasonable notice.   In complying with this clause 21.10 (Syndication); the Obligors 
shall not be required to provide any information that it has provided previously to the Arranger.


21.11         Change of business


Each Obligor shall procure  that no substantial change is made to the general nature of the business 
of that Obligor or any member of the Titan Group from that carried on at the date of this Agreement.


21.12        Maintenance of Status


Each Obligor will maintain its separate corporate existence and remain in good standing under the 
laws of its jurisdiction of incorporation.


21.13            Loans  and Credit


   21.13.1        The Obligors may not (and shall ensure that any member of the Titan Group will not) make any loans, 
provide any credit or issue any guarantee other than Permitted Loans.


.  21.13.2        Clause 21.13.1 above shall not apply to Permitted Loans. 


   21.14            Taxes
        
Each member of the Titan Group must pay all Taxes due and payable by it, unless:


21.14.1            payment  of those Taxes  is being  contested in good faith and adequate reserves are being 
maintained for those Taxes; or


21.14.2            failure to pay those Taxes is not reasonably likely to have a Material Adverse Effect. 


21.15            FinancialIndebtedness


21.15.1            No member of the Titan Group shall incur any Financial Indebtedness nor shall it have any
Financial Indebtedness outstanding.



70






21.15.2        Clause 21.15.1 does not apply to Permitted Financial Indebtedness.


21.15.3        The Parties agree that:
 
(a) following the First Triggering Date, the restriction set out in clause 21.15.1 above shall
-, apply to the Rome Group only; and


(b)  for the purposes of calculating whether Financial Indebtedness falls within the levels
 permitted under clause 21.15.2, Financial Indebtedness incurred in a currency other
 than Euro will be converted into Euro at


(i)      in ttie case of facilities existing at the date of the Amendment and 
Restatement Agreement No.1, the rate of exchange for such currency used by 
the Company to prepare its financial statements as at 31 March 2009; and


(ii)      in the case of other Financial Indebtedness, at the ITM Facility Agent's 
spot rate of exchange for such currency on the date on which the facility under 
which such Financial Indebtedness is incurred is first made available to the 
relevant member of the Titan Group.


21.16     Cancellation of Notes






Each Obligor which has issued an order to repurchase or redeem any Note shall (and shall procure that any other New Holder will) promptly (and in any case no later than the Business Day following the date of purchase or redemption) surrender any such Note to the Paying Agent and ensure that the Notes so surrendered are cancelled by the Paying Agent promptly upon receipt and shall provide evidence to the ITM Facility Agent (reasonably satisfactory to the ITM Facility Agent) of such cancellation.




21.17            Distributions


21.17.1            Up to and including 31 December 2013, no Obligor shall (and shall ensure that no member of the
Titan Group will) make, pay or permit a Distribution without the prior written consent of the Senior 
Lenders.


21.17.2            From 1 January 2014 up to and including 31 December 2015 no Obligor shall (and shall ensure that 
no member of the Titan Group will) make, pay or permit a Distribution if an Event of Default has 
occurred or is continl)ing or would result from such Distribution.


22         Events of Default


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



71






22.1            Non-payment




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


22.1.2            No Event of Default will occur under clause 22.1.1 above:
        
(a)   if its failure to pay is caused by:


(i)     administrative or technical error, or
(ii)     a Disruption Event; and




payment is made within 3 Business Days of its due date, or


(b)   in relation to a failure to repay a Loan or to pay interest in respect thereof (the Unpaid 
Amount), if within 6 months of the date on which such Unpaid Amount fell due and was not 
paid, the Company has procured thatn investment (including, for the avoidance of doubt, 
any third party investment) is received by it, in the form of (i) an increase in the equity share 
capitalof the Company, (ii) the issue of preference shares in the Company, or (iii) 
subordinated loan(s) to the Company (payments in respect of which are to be subordinated 
to the repayment of the Loans and any interest in respect thereof on terms approved  by the 
ITM Facility  Agent {acting reasonably)),  and the proceeds of such investment are applied in 
payment of the Unpaid Amount.


22.2         Financial covenants




22.2.1         Any  requirement   of  clause  20  (Financial  covenants)  is  not  satisfied  for  two  consecutive


Calculation Dates.




22.2.2         No Event of Default will occur under clause 22.2.1 above if, within 6 months of the earlier of:




(a)   an Obligor notifying the ITM Facility Agent of such event or circumstance pursuant to clause 19.5 (Notification of default), and


(b)   the date of delivery of the Compliance Certificate in respect of the Calculation Date on which an Event of Default would have occurred pursuant to clause 22.2.1 but for the operation of this clause,


the Company has procured  that an investment (including, for the avoidance of doubt, any third party investment) is received by it, in the form of (i) an increase in the equity share capital of the Company, (ii) the issue of preference shares in the Company or (iii) subordinated  loan(s)  to  the  Company  (payments  in  respect  of  which  are  to  be subordinated to the repayment of the Loans and any interest in respect thereof on

72






 terms approved by the ITM Facility Agent (acting reasonably)) at a level which is adequate to remedy  the  relevant  breach(es)  of  the  Financial Covenants.  The  amount  of  such investment   shall  be  deemed  to  be  added  to  "EBITDA"  and/or  "Net  Worth"  (as applicable) on the Calculation Date on which an Event of Default would have occurred pursuant to clause 22.2.1 but for the operation of this clause (the Relevant  Calculation Date). The relevant breach(es)  of the Financial Covenants shall be remedied if, after inclusion  of  the  amount  of  the  investment  in  "EBITDA"  and  or/  "Net  Worth"  (as applicable) pursuant to this clause 22.2.2, the Borrower would have complied with the requirements of clause 20 (Financial Covenants) on the Relevant Calculation Date.
22.3        Other obligations




22.3.1        An Obligor does not comply with any provision of the ITM Finance Documents (other than those referred to in 
clause 22.1 (Non-payment) and clause 22.2 (Financial covenants)).


22.3.2        No Event of Default under clause 22.3.1 above  will occur if the failure to comply is in the reasonable opinion 
of the ITM Facility Agent capable of remedy and is remedied within 30 Business Days of the ITM Facility Agent 
giving notice to the Borrower or the Borrower becoming aware of the failure to comply






. 22.4        Compulsory acquisition and destruction




22.4.1        All or a material part of the assets of the Titan Group are seized, expropriated, nationalised, acquired, 
confiscated, requisitioned or administered (whether compulsorily or not).


22.4.2        All or a material part of the assets of the Titan Group are destroyed or damaged by any event of force majeure 
or otherwise and such destruction or damage is likely to have a Material Adverse Effect.


22.5        Litigation and court  orders


Any claim,  litigation,  arbitration or  administrative  proceeding is taking place  or  threatened 
against any member of the Titan Group which, if adversely determined, is reasonably likely to 
have a Material Adverse Effect.


22.6         Misrepresentation
Any representation or statement made or deemed to be made by an Obligor in the ITM Finance 
Documents or any other document delivered by or on behalf of any Obligor under or in connection 
with any ITM Finance Document is or proves to have been incorrect or misleading in any 
materialrespect when made or deemed to be made.



73






22.7        Cross default


22.7.1        Any Financial Indebtedness of any member of the Titan Group (including under the Convertible
Credit) is not paid when due nor within any originally applicable grace period.


22.7.2        Any Financial Indebtedness of any member of the Titan Group (including under the Convertible Credit) is 
declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of 
default (however described).


22.7.3        Any commitment for any Financial Indebtedness of any member of the Titan Group (including under the 
Convertible Credit) is cancelled or suspended by a creditor of any member of either Group as a result of an 
event of default {however described).


22.7.4    Any creditor of any member of the Titan Group becomes entitled to declare any Financial Indebtedness of any 
member of the Titan Group (including under the Convertible Credit) due and payable prior to its specified 
maturity as a result of an event of default (however described).


22.7.5        No Event of Default will occur under this clause 22.7 (Cross default) if the aggregate amount of
Financial Indebtedness or original commitment for Financial Indebtedness falling within clauses
22.7.1 to 22.7.4 above is less than €10,000,000 (or its equivalent in any other currency or    
 currencies). 


22.8        Insolvency


22.8.1        Any Obligor or any Material Company is unable or admits inability to pay its debts as they fall due, suspends 
 making  payments on any of its  debts or, by reason of actual or anticipated financial difficulties, commences
 negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.


22.8.2        Any member of the Titan Group not already referred to in clause 22.8.1, is unable or admits inability to pay its
debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated
financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any
of its indebtedness and such occurrence has a Material Adverse Effect.


22.8.3        The value of the assets of any Obligor or any Material Company (or where such event would havea Material
Adverse Effect, any other member of the Titan Group) is less than its liabilities (taking into account contingent
and prospective liabilities).


22.8.4        A  moratorium  is  declared  in respect  of  any  indebtedness  of  any  Obligor or  any  Material Company or,
where such event would have a Material Adverse Effect, any other member of the Titan Group.



74






22.9        Insolvency proceedings


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


22.9.1        the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or
reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor or any
Material Company (or, where such event would have a Material Adverse Effect, any other member of the Titan
Group) other than a solvent liquidation or reorganisation of any member of the Titan Group which is not an
Obligor;


22.9.2        a composition, compromise, assignment or arrangement with any creditor of any Obligor or any Material
Company or, where such event would have a Material Adverse Effect, any other member of the Titan Group;


22.9.3    the appointment of a liquidator (other than in respect of a solvent liquidation of a Material Company which is 
not an Obligor), receiver, administrative receiver, administrator, compulsory. manager or other similar officer in 
respect of any Obligor or any Material Company (or, where such event would have a Material Adverse Effect, 
any other member of the Titan Group) or any of their assets; or


22.9.4    enforcement of any Security over any assets of any member of the Titan Group"; or 


22.9.5    any analogous procedure or step is taken in any jurisdiction.


22.10    Article 2447 or 2482-ter of the Italian Civil Code


The occurrence of the circumstances set forth in Article 2447, or 2482-ter, as .applicable, of the Italian Civil
Code in relation to a Material Company incorporated in Italy unless, no later than 30 days from the date on
which such Titan Group member's directors have knowledge of such occurrence, a shareholders' meeting is
convened to vote on a resolution approving a capital increase to comply with the minimum capital 
requirements under Italian law (and such capital increase has been fully paid up in the next following 30 days).


22.11     Creditors' process
Any expropriation, attachment, sequestration, distress or execution affects any asset or assets 
of a member of the Group having an aggregate value of €15,000,000 and is not discharged
within 45 days.


22.12        Ownership of ITM and trading of the Company on the AIM 


22.12.1        ITM is not or ceases to.be a member of the Titan Group.



75






22.12.2        The shares of the Company cease to be traded on an Approved Market. 


22.13        Change of control


A person or  group of persons acting in concert acquires control of the Company. For the purposes of this
clause "control" means the direct or indirect ownership of more than 50% of the voting share capital (or
equivalent right of ownership) of the Company or the power to direct its policies and management (including
the power to determine the composition of a majority of the board of directors of the Company) whether by
virtue of contract or otherwise and "acting in concert" means a group of persons who, pursuant to an 
agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly 
or indirectly of shares in the Borrower by any of them, either directly or indirectly, to obtain or consolidate 
control of the Borrower.


22.14    Unlawfulness


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


22.15    Repudiation


22.15.1    Any provision of an ITM Finance Document is not effective in accordance with its terms or an ITM Finance 
Document is repudiated or a party to an ITM Finance Document (other than an ITM Finance Party) evidences 
an intention to repudiate an ITM Finance Document.


22.15.2    Any of the Security Documents is not or ceases to be effective and (if the lntercreditor Agent is satisfied (in its 
absolute discretion) that steps are being diligently taken to remedy the defect) the defect is not remedied 
within 10 Business Days of its occurrence.




22.16    Material adverse change


Any event or series  of events occurs which has a Material Adverse Effect and the Borrower and/or the 
Company are not able to demonstrate, to the reasonable satisfaction of the Majority Senior Lenders (within 10 
Business Days of the notice given to the Borrower by the lntercreditor Agent that, in its opinion, a Material 
Adverse Effect has occurred) that following such event or series of events the Obligors will continue to be able 
to meet their payment obligations under the ITM Finance Documents and the Financial Covenants.


22.17        United States Bankruptcy Laws


22.17.1        In this clause:

76








"U.S. Bankruptcy Law" means  the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101 et seq), as 
amended and in effect from time to time and the regulations issued from time to time thereunder, or any other 
United States Federal or State bankruptcy, insolvency or similar law.


22.17.2        Any of the following occurs in respect of lntertractor USA:


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


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


(c)   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.


22.18     Acceleration




		
	22.18.1 
	On and at any time after the occurrence of an Event of Default the ITM Facility Agent may; and shall if so directed by the Majority ITM Lenders, by notice to the Borrower:




. {a)  cancel the Total Commitments whereupon they shall immediately be cancelled;.


{b)   declare that all or part  of  the Loans, together  with accrued interest, and· all other amounts  accrued  or  outstanding  under  this  Agreement  be  immediately  due  and payable, whereupon they shall become immediately due and payable; and/or




(c)  declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the ITM Facility Agent; and


{d)   subject to the provisions of the lntercreditor Deed, instruct the lntercreditor Agent to take all the steps necessary to enforce the Security Documents.

77






SECTION 9


CHANGES TO PARTIES
23     Changes to the ITM Lenders


23.1    Assignments and transfers by the ITM Lenders


23.1.1        Subject to this clause 23 (Changes to the ITM Lenders),  an ITM  Lender {the "Existing  ITM Lender'') may:


(a)   assign any of its rights; or




{b)   transfer any of its rights and obligations,


to another bank  or financial institution or to a  trust,  fund or  other entity which is regularly engaged in 
or established for the purpose of making, purchasing or investing in loans, securities or other financial 
assets and which is a Qualifying ITM Lender (the "New ITM Lender'').


23.2        Conditions of assignment or transfer


23.2.1        The consent of the Borrower is not required for an assignment or transfer by an Existing ITM Lender.


23.2.2        An assignment will only be effective on:
    
(a)   receipt by the ITM Facility Agent of written confirmation from the New ITM Lender (in form and 
substance satisfactory to the ITM Facility Agent) that the New ITM Lender will assume the same 
obligations to the other ITM Finance Parties as it would have been under if it was an Original ITM 
Lender;and


{b)   performance by the ITM Facility Agent of all necessary "know your customer" or other similar 
checks under all applicable laws and regulations in any jurisdiction in relation to such assignment to a 
New ITM Lender,_ the completion of which the ITM Facility Agent shall promptly notify to the Existing 
ITM Lender and the New ITM Lender.


23.2.3        A transfer will only be effective if the procedure set out in clause 23.5 (Procedure for transfer) is complied with.




23.2.4        If:


(a)   an ITM Lender assigns or transfers any of its rights or obligations under the ITM Finance


       Documents or changes its Facility Office; and
    

78






(b)   as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor 
would be obliged to make a payment to the New ITM Lender or ITM Lender acting through its new Facility 
Office under clause 12 (Tax gross-up and indemnities) or clause 13 (Increased Costs},


then the New ITM Lender or ITM Lender acting through its new Facility Office is only entitled to receive payment under those clauses to the same extent as the Existing ITM Lender or ITM Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.
		
	23.2.5 
	For the purposes of article 1278 of the Luxembourg Civil Code, it is expressly agreed that the Luxco Share Pledge shall be preserved for the benefit of  the assignee of some of the rights and/or obligations of the ITM Lenders and all remaining Secured Parties.




23.3        Assignment or transfer fee


The New ITM Lender shall, on the date upon which an assignment or transfer takes effect, pay to 
the ITM Facility Agent (for its own account) a fee of €1,750.


23.4         Limitation of responsibility of Existing ITM Lenders




		
	23.4.1
	Unless expressly agreed to the contrary, an Existing ITM Lender makes no representation or 


warranty and assumes no responsibility to a New ITM Lender for:


(a)  the  legality,  validity, effectiveness, adequacy  or  enforceability  of  the  ITM  Finance


Documents or any other documents;




(b)   the financial condition of any Obligor or any operating Subsidiary;




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


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


and any representations or warranties implied by law are excluded.




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


it:


(a)   has  made  (and  shall  continue  to  make)  its  own  independent  investigation  and assessment of the 
finaf"!cial condition and affairs of each Obligor or any operating Subsidiary and its related entities in 
connection with its participation in this Agreement

79






 and has not relied exclusively on any information provided to it by the Existing ITM lender in connection with 
any ITM Finance Document; and
        
(b)   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
ITM Finance Documents or any Commitment is in force.


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


(a)   accept a re-transfer  froin  a  New  ITM  Lender  of  any  of  the rights  and  obligations assigned 
or transferred under this clause 23 (Changes to the ITM Lenders); or


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


23.5        Procedure for transfer


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


23.5.2        The ITM Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing ITM 
Lender and the New ITM Lender once it is satisfied it has complied with all necessary  "know  your  customer"  
or  other  similar  checks  under  all  applicable  laws  and regulations in any jurisdiction in relation to the 
transfer to such New ITM Lender.


23.5.3        On the Transfer Date:
(a)   to the extent that in the Transfer Certificate the Existing ITM Lender seeks to transfer by 
novation its rights  and  obligations  under  the ITM  Finance Documents  each  of  the Obligors 
and the Existing ITM Lender shall be released from further obligations towards one another 
under the ITM Finance Documents and their respective rights against one another under the· 
ITM Finance Documents shall be cancelled (being the "Discharged Rights  and Obligations");


(b)   each of the Obligors and the New ITM Lender shall assume obligations towards one 
another and/or acquire  rights  against one another  which differ from  the Discharged Rights 
and Obligations only insofar as that Obligor and the New ITM Lender have 

80






assumed and/or     acquired the same in place of that Obligor and the Existing ITM Lender;


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


(d)   the New ITM Lender shall become a Party as a "ITM Lender".


23.6         Copy of Transfer Certificate  to the Borrow r




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




23.7         Disclosure of information


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




23.7.1         to (or through) whom that ITM Lender assigns or transfers (or may potentially assign or transfer)


all or any of its rights and obligations under this Agreement;




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




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




any information about any  Obligor, the Titan Group, the Acquisition and the ITM  Finance


Documents as that ITM Lender shall consider appropriate.




24     Changes to the Obligors


24.1     Assignments and transfer  by Obligors


No Obligor may assign any of its rights or transfer any of its rights or obligations under the ITM Finance Documents.

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SECTION 10


THE FINANCE PARTIES




25     Role of the ITM Facility  Agent and the Arranger


25.1        Appointment of the ITM Facility Agent


25.1.1        Each ITM Finance Party.(other than the ITM Facility Agent and the lntercreditor Agent) appoints the ITM  
Facility  Agent to act  as  its  agent under  and  in  connection  with  the  ITM  Finance Documents.


25.1.2        Each  ITM  Finance  Party  (other  than  the  ITM  Facility  Agent  and  the  lntercreditor  Agent) authorises the 
ITM Facility Agent to exercise the rights, powers, authorities and discretions specifically given to the ITM 
Facility Agent under or in connection with the ITM Finance Documents together with any other incidental 
rights, powers, authorities and discretions.


25.2        Duties of the ITM Facility Agent


25.2.1        The lTM Facility Agent shall promptly forward to a Party the original or a·copy of any document which is 
delivered to the ITM Facility Agent for that Party by any other Party.


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


25.2.3        If the ITM 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 ITM Finance Parties.


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


25.2.5        The ITM Facility Agent's duties under the ITM Finance Documents are solely mechanical and administrative in 
nature.


25.3        Role of the Arranger


Except as specifically provided in the ITM Finance Documents, the Arranger has no obligations of any kind 
to any other Party under or in connection with any ITM Finance Document.

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25.4        No fiduciary duties


25.4.1        Nothing in this Agreement constitutes the ITM Facility Agent or the Arranger as a trustee or fiduciary of any 
other person.


25.4.2    Neither the ITM Facility Agent nor the Arranger shall be bound to account to any ITM Lender for any sum or 
the profit element of any sum received by it for its own account.


25.5     Business  with the Titan Group


The ITM Facility Agent and the Arranger may accept deposits from, lend money to and 
generally engage in any kind of banking or other business with any member of the Titan 
Group or with the Borrower or any of their Subsidiaries.


25.6        Rights and discretions of the ITM Facility  Agent


25.6.1        The ITM Facility Agent may rely on:


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


25.6.2        The ITM Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for 
the ITM Lenders) that:
(a)   no Default has occurred (unless it has actual knowledge of a Default arising under clause 
22.1 (Non-payment));


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


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


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


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


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

83






25.6.6    Notwithstanding any other provision of any ITM Finance Document to the contrary, neither the ITM Facility 
Agent nor the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion 
constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.


25.7    Majority ITM Lenders' instructions


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


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


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


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


25.7.5        The ITM Facility Agent is not authorised to act on behalf of an ITM Lender (without first obtaining that ITM 
Lender's consent) in any legal or arbitration proceedings relating to any ITM Finance Document.


25.8         Responsibility for documentation




Neither the ITM Facility Agent nor the Arranger:


25.8.1        is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) 
supplied by the ITM Facility Agent, the Arranger, an Obligor or any other person given in or in connection with 
any ITM Finance Document or the Information Memorandum; or


25.8.2        is responsible for the legality, validity, effectiveness, adequacy or enforceability of any ITM Finance Document 
or any other agreement, arrangement or document entered into, made or executed in anticipation of or in 
connection with any ITM Finance Document.

84










25.9        Exclusion of liability




		
	25.9.1
	Without limiting clause 25.9.2 below and without prejudice to the provisions of clause 28.10.5 (Disruption to Payment Systems etc.), the ITM Facility Agent will not be liable for any action taken by it under or in connection with any ITM Finance Document, unless directly caused by its gross negligence or wilful misconduct.




		
	25.9.2
	No Party (other than the ITM Facility Agent) may take any proceedings against any officer, employee or agent of the ITM Facility Agent in respect of any claim it might have against the ITM Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any ITM Finance Document and any officer, employee or agent of the ITM Facility  Agent may rely on this clause.   Subject to clause 1.4 (Third  paity  rights)  and  the provisions of the Third Parties Act.






		
	25.9.3
	The ITM Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the ITM Finance Documents to be paid by the ITM Facility Agent if the ITM 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 ITM Facility Agent for that purpose.




		
	25.9.4
	Nothing in this Agreement shall oblige the ITM Facility Agent or the Arranger to carry out any "know your customer" or other checks in relation to any person on behalf of any ITM Lender and each ITM Lender confirms to the ITM Facility Agent and the 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 ITM Facility Agent or the Arranger.




25.10           ITM Lenders' indemnity to the ITM Facility Agent




Each ITM Lender shall (in proportion to its share of the Total Commitments  or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the ITM Facility Agent, within three Business Days of demand, against  any cost, loss or liability {including, without iimitation, for negligence or  any  other category of liability whatsoever) incurred by the ITM Facility Agent (otherwise than by reason of the ITM Facility Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to clause 28.10 (Disruption to Payment Systems etc.) notwithstanding the ITM Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the ITM Facility Agent) in acting as ITM Facility Agent under the ITM Finance Documents (unless the ITM Facility Agent has been reimbursed by an Obligor pursuant to an ITM Finance Document).

85






    25.11        Resignation of the ITM Facility Agent


25.11.1    The ITM Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the other 
ITM Finance Parties and the Company.


25.11.2    Alternatively the ITM Facility Agent may resign by giving notice to the other ITM Finance Parties and the 
Borrower, in which case the Majority ITM Lenders (after consultation with the Company) may appoint a 
successor ITM Facility Agent.


   25.11.3    If the Majority ITM Lenders have not appointed a successor ITM Facility Agent in accordance with clause 
25.11.2 above within 30 days after notice of resignation was given, the ITM Facility Agent (after consultation 
with the Company) may appoint a successor ITM Facility Agent.


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


25.11.5    The ITM Facility Agent's resignation notice shall only take effect upon the appointment of a successor.


25.11.6    Upon the appointment of a successor, the retiring ITM Facility Agent shall be discharged from any further 
obligation in respect of the ITM Finance Documents but shall remain entitled to the benefit of this clause 25 
(Role of the ITM Facility Agent and the Arranger).  Its successor and each of the other Parties shall have the 
same rights and obligations amongst themselves as they would have had if such successor had been an 
original Party.


25.11.7        After consultation with the Company, the Majority ITM Lenders may, by notice to the ITM Facility
Agent, require  it to resign in accordance  with clause 25.11.2 above.    In this event, the ITM
.         Facility Agent shall resign in accordance with clause 25.11.2 above. 


25.12        Confidentiality


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


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



86






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


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


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


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


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


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


        
25.15        Reference Banks


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


25.16        Deduction from amounts  payable  by the ITM Facility Agent


If any Party owes an amount to the ITM Facility Agent under the ITM Finance Documents the
ITM Facility Agent may, after giving nofce  to that Party, deduct an amount not exceeding that

87






amount from any payment to that Party which the ITM Facility Agent would otherwise be obliged to make under the ITM Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed.   For the purposes of the ITM Finance Documents that Party shall be regarded as having received any amount so deducted.


26     Conduct of business by the ITM Finance Parties




No provision of this Agreement will:


26.1.1    interfere with the right of any ITM Finance Parties to arrange its affairs (tax or otherwise) in
.  whatever manner it thinks fit;


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


26.1.3        oblige  any  ITM  Finance  Parties  to  disclose  any  information  relating  to  its  affairs  {tax  or otherwise) or 
any computations in respect of Tax.




27     Sharing among the ITM Finance Parties




27.1     Payments to ITM Finance Parties




Subject to the provisions of the lntercreditor Deed, if an ITM Finance Party (a "Recovering ITM Finance Party") receives or recovers any amount from an Obligor other than in accordance with clause  28  (Payment  mechanics)  and  applies  that  amount  to  a  payment  due  under  this
Agreement then:


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


27.1.2        the rna Facility  Agent shall determine  whether the receipt  or recovery is in excess of the amount the 
Recovering ITM Finance Party would have been paid had the receipt or recovery been received or made by 
the ITM Facility Agent and distributed in accordance with clause 28 (Payment mechanics), without taking 
account of any Tax which would be imposed on the ITM Facility Agent in relation to the receipt, recovery or 
distribution; and


27.1.3        the Recovering ITM Finance Party shall, within three Business Days of demand by the ITM Facility Agent, pay 
to the ITM Facility Agent an amount (the "Sharing  Payment") equal to such receipt or recovery less any 
amount which the ITM Facility Agent determines may be retained by the Recovering ITM Finance Party as its 
share of any payment to be made, in accordance with clause 28.5 (Partial payments).

88






27.2    Redistribution of payments


The ITM Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it  between the ITM Finance Parties (other than the Recovering ITM Finance Party) in accordance with clause 28.5 (Partial payments).




27.3        Recovering ITM Finance Parties's  rights


27.3.1        On a distribution by the ITM Facility Agent under clause 27.2 (Redistribution of payments), the Recovering ITM 
Finance Party will be subrogated to the rights of the ITM Finance Parties which have shared in the 
redistribution.


27.3.2        If and to the extent that the Recovering ITM Finance Party is not able to rely on its rights under clause 27.3.1 
above, the relevant Obligor shall be liable to the Recovering ITM Finance Party for a debt equal to the Sharing 
Payment which is immediately due and payable.


27.4        Reversal of redistribution


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


27.4.1        each ITM Finance Party which has received a share of the relevant Sharing Payment pursuant to clause 27.2 
(Redistribution of payments) shall, upon request of the ITM Facility Agent, pay to the ITM Facility Agent for 
account of that Recovering ITM Finance Party an amount equal to the appropriate part of its share of the 
Sharing Payment (together with an amount as is necessary to reimburse that Recovering ITM Finance Party 
for its proportion of any interest on the Sharing Payment which that Recovering ITM Finance Party is required 
to pay); and


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


27.5        Exceptiohs




27.5.1        This clause 27 (Sharing among the ITM Finance Parties) shall not apply to the extent that the Recovering ITM 
Finance Party would not, after making any payment pursuant to this clause, have a valid and enforceable 
claim against the relevant Obligor.


27.5.2        A Recovering ITM Finance Party is not obliged to share with any other ITM Lender any amount which the 
Recovering ITM Finance Party has received or recovered as a result of taking legal or arbitration proceedings, 
if:
(a)   it notified that other ITM Finance Parties of the legal or arbitration proceedings; and


            

89






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

90






SECTION 11


ADMINISTRATION




28     Payment mechanics


28.1        Payments to the ITM Facility  Agent


28.1.1        On each date on which an Obligor or an ITM Lender is required to make a payment under an ITM Finance 
Document, that Obligor or ITM Lender shall make the same available to the ITM Facility Agent (unless a 
contrary indication appears in an ITM Finance Document) for value on the due date at the time and in such 
funds specified by the ITM Facility Agent as being customary at the time for settlement of transactions in the 
relevant currency in the place of payment.


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


28:2     Distributions by the ITM Facility  Agent




Each payment received by the ITM Facility Agent under the ITM Finance Documents for another Party shall, subject to clause 28.3 (Distributions to Obligors) and clause 28.4 (Ciawback) be made available by the ITM Facility Agent as  soon as practicable after receipt . to the Party entitled to receive payment in accordance with this Agreement (in the case of an ITM Lender, for the account of its Facility Office), to such account as that Party may notify to the ITM Facility Agent by not less than five Business Days' notice with a bank in the principal financial centre of the  country of  that currency (or, in  relation  to  euro, in  the principal financial centre of  a Participating Member State or London).


28.3        Distributions to Obligors


28:3.1    Subject to clause 28.3.2 each payment received by the ITM Facility Agent in respect of the


Revolving Facility shall·be paid by the ITM Facility Agent into the relevant Revolving Account.








28.3.2        Without prejudice and in addition to any other right of the ITM Finance Parties under any applicable law the 
ITM Facility Agent may (with the consent of the Obligor or in accordance with clause 29 (Set-off)) apply any 
amount received by it for that Obligor in or towards payment (on the date and in the currency and furids of 
receipt) of any amount due from that Obligor under the ITM Finance Documents or in or towards purchase of 
any amount of any currency to be so applied.
.

91








28.4        Clawback


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


28.4.2    If the ITM Facility Agent pays an amount to another Party and it proves to be the case that the ITM Facility 
Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any 
related exchange contract) was paid by the ITM Facility Agent shall on demand refund the same to the ITM 
Facility Agent together with interest on that amount from the date of payment  to the date of receipt by the ITM 
Facility Agent, calculated by the ITM Facility Agent to reflect its cost of funds.


28.5        Partial payments


28.5.1        If the ITM Facility Agent receives a payment that is insufficient to discharge all the amounts then due and 
payable by an Obligor under this Agreement, the ITM Facility Agent shall (subject to the relevant provisions of 
the lntercreditor Deed) apply that payment towards the obligations of that Obligor under this Agreement in the 
following order:
(a)   first, in or towards payment pro rata of any unpaid fees, costs and expenses of the ITM Facility 
Agent under this Agreement;
(b)   secondly, in or towards payment pro rata of any accrued interest, fee or commission due but 
unpaid under this Agreement;


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


(d)   fourthly, in or towards payment pro rata of any other sum due but unpaid under this Agreement.


28.5.2        The ITM Facility Agent shall, if so directed by the Majority ITM Lenders, vary the order set out in clauses 
28.5.1(b) to 28.5.1(d) above.


28.5.3        Clauses 28.5.1 and 28.5.2 above will override any appropriation made by an Obligor. 


28.6        No set-off  by Obligors
All payments to be made by an Obligor under·the ITM Finance Documents shall be calculated and be made 
without (and free and clear of any deduction for) set-off or counterclaim.



92






28.7        Business Days


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


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


28.8    Currency of account




28.8.1    Subject to clauses 28.8.2 and 28.8.3 below, euro is the currency of account and payment for any sum due 
from an Obligor under any ITM Finance Document.


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


28.8.3        Any amount expressed to be payable in a currency other than euro shall be paid in that other currency.


28.9    Change of currency


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


{a)   any reference in the ITM Finance Documents to, and any obligations arising under the ITM 
Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or 
currency unit of that country designated by the ITM Facility Agent {after consultation with the 
Company); and
(b)   any translation from one currency or currency unit to another shall be at the official rate of exchange 
recognised by the central bank for the conversion of that currency or currency unit into the other, 
rounded up or down by the ITM Facility Agent {acting reasonably).


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



93






28.10        Disruption to Payment Systems etc.


If either the ITM Facility Agent determines (in its discretion) that a Disruption Event has occurred
or the ITM Facility Agent is notified by the Borrower that a Disruption Event has occurred:


28.10.1        the ITM Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a 
view to agreeing with the Borrower such changes to the operation or administration of the Facility as the ITM 
Facility Agent may deem necessary in the circumstances;


28.10.2    the ITM Facility  Agent shall not be obliged to consult  with the Borrower in relation  to any changes  mentioned  
in clause  28.10.1 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;


28.10.3    the ITM Facility Agent may consult with the ITM Finance Parties in relation to any changes mentioned  in  
clause  28.10.1  but  shall not  be  obliged  to do  so if, in its  opinion, it is  not practicable to do so in the 
circumstances;


28.10.4    any such changes agreed upon by the ITM Facility Agent and the Borrower 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 ITM Finance Documents notwithstanding the provisions of clause 34 
(Amendments and Waivers);  ·


28.10.5    the  ITM  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 ITM Facility Agent) arising as a result of its taking, or failing to 
take, any actions pursuant to or in connection with this clause 28.10 (Disruption to Payment Systems etc.); 
and


28.10.6        the ITM Facility Agent shall notify the ITM Finance  Parties of all changes agreed pursuant to clause 28.10.4 
above.


29     Set-off




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





94






30     Notices




30.1     Communications in writing




Any communication to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated, may be made by fax or letter.
30.2    Addresses
The address and fax number {and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with this Agreement is:


30.2.1        in the case of the Company, that identified below:
Address: Bridge Road, Coakley, Nr Kidderminster, Worcestershire DY10 3SD 
Attention: Miss Cecilia La Manna/Mr. Gary Chesterton
Fax number: +44 {0) 1562 850 561
Telephone number: +44 {0) 1562 852 554 


30.2.2        in the case of the Borrower:
Address: Via Confortino 23/28, 1-40056 Cr.espellano, Joe. Calcara (Bologna), Italy
Attention: Cecilia La Manna 
Fax number:+39 051 738 2.90 


30.2.3        in the case of ITM:
Address: Via Confortino 23/28, 1-40056 Crespe!lano, loc. Calcara {Bologna), Italy
Attention: Cecilia La Manna
Fax number: +39 051 738 290


30.2.4        in the case of each ITM Lender that notified in writing to the ITM Facility Agent on or prior to the date on which 
it becomes a Party; and


30.2.5        in the case of the ITM Facility Agent and the lntercreditor Agent, that identified below:
Address: Loan Agency, Direzlone Investment Banking and Capital Markets, Piazza della Scala
6, Milan 20121, Italy


        

95






Attention: Miss Paola Elardo/Miss Maria Antonietta Rumbolo


Fax number: +39 02 8794 2013


Telephone number: +39 02 87943892


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


30.3    Delivery


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


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


(b)   if by way of letter, when it has been left at the relevant address or five Business Days after 
being deposited in the post postage prepaid in an envelope addressed to it at that address,


and, if a particular department or officer is specified as part of its address details provided 
under clause 30.2 (Addresses), if addressed to that department or officer.


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


30.3.3        All notices from or to an Obligor shall be sent through the ITM Facility Agent.


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




30.4        Notification of address and fax number


Promptly upon receipt of notification of an address or fax number or change of address or fax 
number pursuant to clause 30.2 (Addresses) or changing its own address or fax number, the ITM 
Facility Agent shall notify the other Parties.



96






30.5         Electronic communication


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


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


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


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


30.6        Any electronic communication made between the ITM Facility Agent and an ITM Lender will be effective only 
when actually received in readable form and in the case of any electronic communication made by an ITM 
Lender to the ITM Facility Agent only if it is addressed in such a manner as the ITM Facility Agent shall specify 
for this purpose.


30.7        English language


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


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


(a)   in English; or


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


31     Calculations and certificates




31.1     Accounts




In any litigation or arbitration proceedings arising out of or in connection with an ITM Finance Document, the entries made in the accounts maintained by an ITM Finance Party aie  prima facie evidence of the matters to which they relate.


31.2     Certificates and Determinations




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



97






31.3     Day count  convention




Any interest, commission or fee accruing under an ITM Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market practice.




32     Partial invalidity


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


33     Remedies and Waivers




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


34     Amendments and Waivers




34.1     Required consents


34.1.1     Subject to:




(a)   the relevant provisions of the lntercreditor Deed; and




(b)   clause 34.2 (Exceptions) below,




any term of this Agreement may be amended or waived only with the consent of the Majority


ITM Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.




		
	34.1.2 
	The ITM Facility Agent may effect  on behalf of any ITM Finance Parties, any amendment or waiver permitted by this clause.




34.2     Exceptions




		
	34.2.1 
	An amendment or waiver that has the effect of changing or which relates to: 


(a)   the definition of "Majority ITM Lenders,. in clause 1.1 (Definitions);
(b)   an extension to the date of payment of any amount under this Agreement;



98






(c)   a reduction in the Margin not expressly provided for in this Agreement or a reduction in the amount of any payment of principal, interest, fees or commission payable;




(d)   any provision which expressly requires the consent of all the ITM Lenders; or
(e)   Clause 2.2 (ITM Finance Parties' rights and obligations), clause 23 (Changes to the ITM Lenders) or this clause 34 (Amendments and Waivers);


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




		
	34.2.2
	An amendment or waiver which relates to the rights or obligations of the ITM Facility Agent or the Arranger may not be effected without the consent of the ITM Facility Agent or the Arranger.




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




(a)   an increase in or an extension of any Commitment under this Agreement; an




(b)   any provision which expressly requires the consent of the lntercreditor Agent (whether or not on the instruction of the Majority Senior Lenders), or any consent, approval or instruction from the Majority Senior Lenders, of all the ITM Lenders; or


(c)   this clause 34 (Amendments and Waivers);




shall only be made in accordance with the provisions of the lntercreditor Deed.




35     Counterparts




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.


36     Summary Document




The Summary Document to be delivered by the Borrower pursuant to this Agreement is solely to provide a summary of the main terms and conditions of the Agreement for the purposes of the Bank of Italy's instructions on the transparency of banking transactions and services (lstruzioni di vigilanza perle  banche, Titolo X, Capitola 1). The Parties agree that the Summary Document is not intended to amend, supplement  or interpret this Agreement.   In case of inconsistency between this Agreement and the Summary Document, this Agreement will prevail for all purposes.

99






SECTION 12


GOVERNING LAW AND ENFORCEMENT




37     Governing law




This Agreement is governed by English law.




38     Enforcement


38.1        Jurisdiction


38.1.1        The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection  with  this  
Agreement  (including  a  dispute  regarding  the  existence,  validity  or termination of this Agreement) (a 
"Dispute").


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


38.1.3        This clause 38.1 (Jurisdiction) is for the benefit of the ITM Finance Parties only.  As a result, no ITM Finance 
Parties shall be prevented from taking proceedings  relating to a Dispute in any other courts with jurisdiction.  
To the extent allowed by law, the ITM Finance Parties may take concurrent proceedings in any number of 
jurisdictions.


38.2     Service of process


Without prejudice to any other mode of service allowed under any relevant law, the Borrower
and ITM as ITM Guarantor:


38.2.1        irrevocably  appoint  the  Company  as  their  agent  for  service  of  process  in relation  to any proceedings 
before the English courts in connection with any ITM Finance Document; and


38.2.2        agree that failure by the process agent to notify the relevant of the process will not invalidate the proceedings 
concerned.




38.3     Waiver of immunity




Each Obligor irrevocably and unconditionally:


(a)   agrees not to claim any immunity from proceedings brought by an ITM Finance Party against it in relation to an ITM Finance 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

100






(c)   waives all rights of immunity in respect of it or its assets.




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



101






Schedule 1


The OriginalParties




Part 1


The Original Obligors


Name of the Company                            Registration number (or equivalent, if any)


Titan Europe pic                            3018340


Name of Borrower                            Tax code, VAT and Registration number with 
the Companies Register  of Potenza


		
	·ltaltractor I.T.M. S.p.A. 
	01731300362




		
	 Name of Guarantors
	Registration  number  (or   if  applicable, Tax 


code and VAT number}
                    
		
	Titan Europe pic
	3018340


		
	 ltaltractor Operations S.p.A.
	0292550362 (Companies Register of 


Modena)

102








Part2




The Original ITM lenders




	
						
	Name of Original ITM Lender
	Revolvicing Facility Commitment
	Term Loan Facility Commitment
	Term Loan A
	Term Loan B
	 

	lntesa Sanpaolo S.p.A


	 '€15,000,000
	'€50,000,000


	'€30,000,000


	'€6,000,000
	 

	Unicredit S.p.A


	'€10,600,000
	'€35,300,000
	'€30,500,000
	'€6,000,000
	 

	(formerly    Unicredit Corporate Banking S.p.A., formerly Banca di Roma S.p.A.)


	 

	Unicredit S.p.A.   


	'€4,400,000
	'€14,700,000
	 
	 
	 

	(formerly  Unicredit Corporate Banking S.p.A., formerly Bipop Carire S.p.A.)
	 

	 
	 
	 
	 
	 
	 

	 
	 
	 
	 
	 
	 

	 
	 
	 
	 
	 
	 









103






Schedule 2


Conditions precedent




Conditions Precedent to InitialUtilisation




1     Obligors.




(a)   A copy of the constitutional documents of the Company.




(b)   A copy of a resOlution of the board of directors of the Company:·




(i)       approving the terms of, and the transactions contemplated by, the ITM Finance Documents to which it is a party and resolving that it execute the ITM Finance Documents to which it is a party;


(ii)      authorising a specified person or persons to execute the ITM Finance Documents to which it is a party on its behalf; and


(iii)     authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the ITM Finance Documents to which it is a party.


(c)   A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.


(d)  A certificate of the Company (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on the Company to be exceeded.


(e)   A  certificate  of  an  authorised  signatory  of  each  Obligor  certifying  that each  copy


· document relating to it specified in this Part 1 of Schedule 2 (Conditions precedent) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.


(f)     The Original Financial Statements of the Company.




(g)   A notarial deed of incorporation and by-laws (statuto ed atto costitutivo) of the Borrower. 




(h)   An extract of the pages of the relevant company register of the Borrower containing the resolution of the board of directors of the Borrower (or if required by the existing constitutional documents  of the Borrower, a copy of a resolution of the shareholders meeting of the Borrower):







104






(i)       approving  the terms of, and the transactions  contemplated by, the ITM Finance Documents  to which it is or will become a party and resolving  that it execute the ITM  Finance  Documents  to which it is  a party  and  grant  all the Security  to be granted by it under any Security Document;


(ii}      authorising a specified person or persons to execute the ITM Finance Documents and the other ITM Finance Documents to which it is a party and any Security Document  to which it is a party on its behalf; and


(iii}"     authorising  a specified  person or persons, on its behalf, to sign and/or despatch all other documents and notices (inCluding, any Utilisation  Request}  to be sighed and/or despatched by it under or in connection with the ITM Finance Documents.


(i)    A specimen  of the signature  of each person authorised  by the resolution  referred  to in paragraph  (h)  above,  and,  if  necessary,   a  notarised   copy  of  a  power  of  attorney empowering  such person to sign the above documents  on behalf of the Borrower.


		
	0) 
	A certificate  of the  Borrower  (signed  by a director  or legal representative) confirming that borrowing  or guaranteeing the Total Commitments would not causany borrowing, guaranteeing   or  similar  limit  binding  on  it  to  be  exceeded   and  that  none  of  the circumstances  contemplated in article  2447  of the  Italian  Civil  Code  has  occurred  in respect of it.




(k)   A certificato di vigenza of the Borrower including  a non-insolvency statement  dated not earlier than 10 Business  Days prior to the date of this Agreement.


(I}     Certificates  from the competent  court (certificato di assenza di procedure concorsuaft)


attesting that no insolvency proceedings  against the Borrower have been commenced
(m)  Evidence  of  the  outstanding intercompany  indebtedness to be  refinanced  under  the Facility and a certificate  signed  by an authorised  signatory  of the Borrower  describing the nature  of such indebtedness and its main terms  and conditions  and certifying  that such indebtedness is properly  accounted for in the accounting books of the Borrower.


2     Legal opinions




(a}   A legal opinion ofNorton Rose, English legal advisers  to the Arranger. (b)   A legal opinion of Norton Rose, Italian legal advisers to the Arranger
(c)   A legal opinion of Gateley Wareing LLP as English legal advisers  to the Company.
(d)   A legal opinion of Norton Rose, as German legal advisers  to the Arranger in relation  to the lntertractor Share Pledge.

105








(e)   A legal opinion of Allen & Overy, Milan, Italian legal advisers to the Company addressed to the ITM Facility Agent and the other ITM Finance Parties on issues such as, inter alia, status and capacity of the Borrower and  any other Security Provider incorporated in Italy, to enter into and perform the ITM Finance Documents to which any of such entity is a party (or in the case of a Security Provider, to grant the relevant Security).


(f)    A tax opinion from Allen & Overy, Milan addressing, inter alia, any issue relating to the relevant thin capitalisation rules applicable to the Company and the Borrower.


3    Other documents and evidence




(a}   Evidence that the Acquisition has been fully and unconditionally completed and certified copies of all the Acquisition Documents.


(b)   A certified copy of the Framework Agreement duly executed by the Existing Banks.




(c)   Evidence that a capital increase in the Company of not less than £70,000,000 has been completed and fully paid in following Admission.


(d)   An original of each ITM Finance Document, duly executed by the parties to it.




(e)   A copy of any other Authorisation or other document, opinion or assurance which the ITM  Facility  Agent reasonably   considers  to  be  necessary  or  desirable  following  Cl change in law, banking regulations or banking practice in connection with the entry into and performance of the transactions contemplated by any ITM Finance Document or for the validity and enforceability of any ITM Finance Document.


(f)    The final business plan relating to the Acquisition, the Structure Memorandum and the Existing Debt Chart.


(g)   Evidence that the fees, costs and  expenses  then due from any Obligor pursuant to clause 11 (Fees), clause 16 (Costs  and expenses) and the letter cancelling a facility agreement dated 7 December 2005 have been paid or will be paid by the first Utilisation Date.


(h)   A copy of the Admission Document.


(i)    A Summary Document  (in the  form  of  Schedule 5 (Summary  Document) signed for acknowledgement and acceptance by the relevant Borrower and constituting the Documento  di  Sintesi  required  by  the  relevant  Italian  banking  regulations, namely Section 10 of the Bank of Italy's regulations of 25 July 2003 and the C.I.C.R. resolution dated 4 March 2003.

106






(j)    An extract of the pages (stamped  with the notarial seal) of  the relevant  company register setting out the ITM corporate resolutions approving an equity injection (versamento in conto capita/e) in ITM for not less than €94,000,000.


(k)  Evidence that the process agent specified in clause 38.2 (Service of process) has accepted its appointment in relation to the Borrower and ITO as ITM Guarantor.


4     Security




(a)   Evidence that all Security to be created pursuant to the Security Documents has been :


.created and all the formalities required by any applicable law for the perfection of such


Security have been complied with.




(b)  In relation to Security Providers incorporated outside Italy, copies of any corporate authorisation or evidence that any other necessary action has been taken to authorise each Security Provider to enter into, deliver and perform the Security Document  to which any such Security Provider is a party and in relation to any Security Providers incorporated in Italy, an extract of the pages (stamped with the notarial seal) of the relevant company register of each Security Provider to enter into, deliver and perform the Security Document to which ith Security Provider is a party.

107






Schedule 3


Form of Utilisation Request




Utilisation Request




From:     [Borrower]




To:     [ITM Facility Agent]
Dated: Dear Sirs


€130,000,000 Facility Agreement dated [] {the "Agreement")


		
	1 
	We refer to the Agreement.  This is a Utilisation Request.  Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.




2     We wish to borrow a Loan on the following terms:


		
	Proposed Utilisation Date: 
	[] (or, if that is not a Business Day, the next Business Day)




Amount:


[] or, if less, the Available Facility








Interest Period:     []


		
	3 
	The principal amount (or its equivalent in euro) of the Existing Secured Facilities outstanding as at the date of this Utilisation Request is € [].




		
	4 
	We confirm that each condition specified in clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.




		
	5 
	We confirm that the proceeds of this Loan will be applied towards one or more of the purposes specified in clause 3.1 (Purpose) of the Agreement as follows:




Clause: [] 


Purpose: []









108






6     [We have attached hereto the evidence and the certificate referred to in clause 5.3.4 of the


Agreement]' [we have attached hereto the evidence and the certificate referred to in clause
5.3.7 of the Agreement].




		
	7 
	[In relation to a Utilisation under the Term Loan Facility, we confirm that the copies of the documents referred to in sub-paragraphs (a), (b) and (c) of clause 5.3.7 of the Agreement are true copies of the originals.]·




		
	8 
	The proceeds of this Loan should be credited to [specify account  detail  and details of the account holder].




9    This Utilisation Request is irrevocable.








Yours faithfully






authorised signatory for

109






Schedule 4


Form of Transfer Certificate




To:     [] as ITM Facility Agent




From:     [The Existing ITM Lender] (the "Existing ITM Lender")  and [The New ITM Lender] (the
"New ITM Lender") Dated:


Dear Sirs


€130,000,000 Facility Agreement dated [] (the "Agreement")




		
	1 
	We refer to the Agreement.   This is a Transfer Certificate.  Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.




2     We refer to clause 23.5 (Procedure for transfer):




(a)     The Existing ITM Lender and the New ITM Lender agree to the Existing ITM Lender transferring to the New ITM Lender all or part of the Existing ITM Lender's Commitment. rights  and  obligations . referred  to  in  the  Schedule  in  accordance  with clause 23.5 (Procedure for transfer).


(b)     The proposed Transfer Date is [].




(c)     The Facility Office and address. fax number and attention details for notices of the New


ITM Lender for the purposes of clause 30.2 (Addresses) are set out in the Schedule.




		
	3 
	The  New  ITM  Lender expressly  acknowledges  the limitations  on the Existing ITM Lender's obligations set out in clause 23.4.3 (Limitation of responsibility of Existing ITM Lenders).




[4/5]   This Transfer Certificate 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 Transfer Certificate.


[5/6]   This Transfer Certificate is governed by English law.

110






THE SCHEDULE CommitmenUrights and obligations to be transferred
[insert relevant details]


(Facility Office address, fax number and attention details for notices and account details for payments,]


[Existing ITM Lender]     [New ITM Lender] By:     By:
This Transfer Certificate is accepted by the ITM Facility Agent and the Transfer Date is confirmed as
].




[ITM Facility Agent] By:

111










Schedule  5


Form of Summary Document




II presente documento, redatto ai sensi delle istruzioni della Banca d'ltalia sulla trasparenza dei servizi e delle operazioni bancarie (Jstruzioni di Vigilanza perle banche, Titolo X, Capitola 1), evidenzia una sintesi delle piu significative condizioni contrattuali ed economiche del Facilities Agreement per complessivi Euro 80.000.000 (ottantamilioni) stipulato in data 2 febbraio 2006 come modificato in data 19 maggio 2009, tra le parti qui di seguito indicate (il "Contralto diFinanziamento").


II testo  integrale delle  clausole  che  regolano  il  finanziamento  e contenuto  nel Contratto di Finanziamento. Parole ed espressioni definite nel Contratto di Finanziamento hanno il medesimo significato quando usate nel presente documento.




1    PARTICONTRATTUALI E PRINCIPAL! CONDIZIONI DEL FINANZIAMENTO




1.1     Parti




Debitore  {Borrower): ltaltractor Operations. S.p.A.


Banche Finanziatrici (Original ITM Lenders): lntesa Sanpaolo S.p.A (gia lntesa S.p.A.) UniCredit Corporate Banking S.p.A. (gia Banca di Roma S.p.A. e Bipop Carire
Banca Agente (ITM FAcility Agent): lntesa Sanpaolo S.p.A (gia lntesa S.p.A.) Arranger: lntesa Sanpaolo S.p.A (gia lntesa S.p.A.)
lntercreditor Agent: lntesa Sanpaolo S.p.A (gia lntesa S.p.A.) Garanti: Titan Europe pice ltaltractor Operations S.p.A.
1.2     lmporto complessivo del Finanziamento, come modificato in data 19 maggio 2009: Euro


80.000.000 (ii"Finanziamento")




  ·Facility: per un ammontare massimo di Euro 80.000.000


Scopo: finanziare gli ammontari dovuti dalla Societa o da una delle sue controllatw (definite


"Subsidiaries") per l'acquisto o il rimborso, in tutto o in parte, delle Notes in circolazione;




Periodo  di  interessi:  ha  inizio  in  corrispondenza  deii'Utilisation  Date  o  (se  gia  avvenuta) dell'ultimo giorno del precedente periodo di interessi. II periodo di interessi durera 3 mesi aile condizioni indicate all'art. 9 (Interest Periods) del Contratto diFinanziamento;


Tasso di interesse: EURIBOR piu il Margine (Margin) di volta in volta applicabile;

112










Margine: 3,50% in ragione d'anno




Tasso di mora: Ia misura sara determinata aumentando il tasso di interesse di 1,5%;




Rimborso: in 20 rate di eguale importo, aile condizioni indicate all'art. 6.1 del Contratto di


Finanziamento.




2     DICHIRAZIONI E GARANZIE




Come meglio descritto all'art. 18 (Representation) del Contratto di Finanz!amento, questa riguardano, inter alia: status, poteri, pari passu, assenda di conflitti con altre obbligazioni, assenza di eventi di risoluzione, assenza di procedure concorsuali, corporate benefit.


3     PRINCIPAL! OBBLIGAZIONI DEL DEBITORE




Come meglio descritto agli artt. 19 (Information undertakings), 20 (Financial covenants) e 21 (General undertakings), queste includono, inter alia: specifici obblighi informative, if  rispetto di determinati parametric finanziari, il rispetto dei termini e delle condizioni della Hedging Policy, il negative pledge, il pari passu, il non concedere prestiti ne garanzie se non nei limiti indicati nel Contralto di Finanziamento, Ia possibilita di procedere ad operazioni di fusione o acquisizione solo aile condizioni e nei termini previsti dal Contralto di Finanzianiento.


4     RISOLUZIONE




AI verificarsi di determinati eventi o per violazione di clausole contrattuali rilevanti come da art.


22 (Events of Default) del Contratto di Finanziamento.




5     INDICATORE SINTETICO Dl COSTO




L'indicatore sintetico di costo e pari a []%




6     LEGGE APPLICABILE E FORO COMPETENTE




II Contratto di Finanziamento e regolato dalla Iegge inglese e qualsiasi controversia (incluse quelle relative all'esistenza, alia validita o alia risoluzione del Contralto di Finanziamento) sara devoluta alia competenza esclusiva delle cortiinglesi.



113






Schedule 6


Form of Compliance  Certificate




To: [] as ITM Facility Agent




From:     [Borrower] Dated:
Dear Sirs




€130,000,000 Facility Agreement dated [] (the "Agreement")


		
	1 
	We refer to the Agreement.  This is a Compliance Certificate. Terms defined in the Agreement have  the same  meaning  when used in  this Compliance  Certificate unless  given  a different meaning in this Compliance Certificate.




2     We confirm that:  [Insert details of covenants to be certified]




3    [We confirm that no Default is continuing.]'




Signed:




Director of.                                · Director of
[Borrower]                                [Borrower]
            










for and on behalf of


[name of the Borrower]






for and on behalf of


[name of the Borrower}










If this statement cannot be made, the certificate should identify any Default that is continuing and the steps, If any, being taken to remedy it.

114






Schedule 7


Existing Security




Name of Obligor                     Security                Total Principal Amount of
Indebtedness Secured


lntertractor America Co.                First priority security interest in     All monies and liabilities owed to La 
and to any and all property of     ·  Salle Bank N.A.
the company


ltaltractor Landroni Ltda                Mortgage of real estate        All monies due to Banco Nacional do 
Desenvolvimento Economico e Social

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Schedule 8


Timetables


Delivery  of a duly completed  Utilisation                11:00 a.m. Brussels 
 Request (clause 5.1 (Delivery  of a                time 3 Business days 
 Utilisation Request)                        before requested 
Utilisation Date




ITM Facility Agent notifies the ITM 
Lenders  of the Loan in accordance with 
clause 5.4 (ITM Lenders' participation) 
EURIBOR is fixed


Quotation Day as of
11:00 am (Brussels time)
                                    

116








Schedule 9


Repayment Schedule


	
		
	Repayment Date
	Repayment Instalment

	31 January 2012


	'€2,000,000

	30 April 2012
	'€2,000,000

	31 July 2012


	'€2,000,000

	31 October 2012


	'€2,000,000

	31 January 2013


	'€2,000,000

	30 April 2013
	'€2,000,000

	31 July 2013


	'€2,000,000

	31 October 2013


	'€2,000,000

	31 January 2014


	'€5,500,000

	30 April 2014
	'€5,500,000

	31 July 2014


	'€5,500,000

	31 October 2014


	'€5,500,000

	31 January 2015


	'€5,500,000

	30 April 2015
	'€5,500,000





117






	
		
	Repayment Date
	Repayment Instalment

	31 July 2015


	'€5,500,000

	

31 October 2015
	'€5,500,000







118








Schedule 10


Hedging Policy




1     Introduction




		
	1.1 
	This Schedule 10 (Hedging  Policy) constitutes the  Hedging  Policy for the purposes  of  the Facility Agreement between, among others, ltaltractor ITM S.p.A. as Borrower and lntesa Sanpaolo S.p.A. as lntercreditor Agent, ITM Facility Agent and ITM Lender.  Under clause 21.8 (Hedging) of the Facility Agreement, the Borrower is obliged to comply with the terms of this Hedging Policy.




1.2     The objective of the Hedging Policy is to mitigate the Borrower's exposure to interest rate risk.




		
	1.3 
	The  Parties  agree  that  the  ITM  Hedging  Agreements  are  to  be  used  solely  as  a  risk management tool to protect the Borrower from adverse movements in financial markets.  The Borrower shall not enter into the ITM Hedging Agreements  or derivative transactions as  a means of speculating on movements in the underlying financial markets.


		
	1.4 
	In this Hedging Policy, "Base  Amount" means at any time the aggregate of (i) the aggregate principal  amount  outstanding  under  the Term  Loan Facility and (i)  the aggregate  principal amount hedged under the ITO Facility.




2     Obligation to enter ITM Hedging Agreements




2.1     The Borrower shall:




		
	2.1.1 
	enter into ITM Hedging Agreements that satisfy the requirements of paragraphs 2.2 and 2.3 of this Hedging Policy by no later than seven Business Days from the date of the Amendment and Restatement Agreement No. 1; and




		
	2.1.2 
	be obliged to maintain at all times ITM Hedging Agreements which when aggregated with the principal amount of the ITO Facility hedged under the ITO Hedging Agreements (as defined under the ITO Facility) is in aggregate at least 100% of the Bctse Amount.






		
	2.2 
	The Borrower shall only enter into an ITM Hedging Agreement with lntesa Sanpaolo S.p.A. or any Affiliate of lntesa Sanpaolo S.p.A. or, subject to the consent of the Arranger, another person who is a Lender or an Affiliate of a Lender and who is attributed a credit rating by S&P of at least A- or by Moody's of at least A3.




		
	2.3 
	The Borrower shall enter into and maintain at all times ITM Hedging Agreements in accordance with paragraph 2.1, at the prevailing market conditions at the time of entering into of such ITM Hedging Agreements.



119






		
	2.4 
	The ITM Hedging Agreements contemplated by paragraph 2.3 shall match the repayment profile of the Term Loan Facility in respect of which such ITM Hedging Agreement nominally relates.




		
	2.5 
	In respect of any period ending prior to the first Repayment Date, the Borrower shall ensure that the due date for value (as referred to in Section 2(a)(ii) of the ISDA Master Agreement (2002) and as specified in the applicable confirmations) in respect of each ITM Hedging Agreement shall coincide with the Interest Payment Dates relative to the Loan in respect of which such ITM Hedging Agreement nominally relates.




		
	2.6 
	In respect of any period commencing on or after the first Repayment Date for the Term Loan Facility, the Borrower shall ensure that each due date for value in respect of each ITM Hedging Agreement shall coincide with each Interest Payment Date relative to the Term Loan in respect of which such ITM Hedging Agreement nominally relates.




3     Prepayment of Loans




3.1     If the Borrower:




		
	(a) 
	makes a prepayment (whether in whole or in part) of any of the Term Loans to which any of the ITM Hedging Agreements nominally relate; or




		
	(b) 
	cancels all or part of any of the Commitments under any of the Term Loan Facility to which any of the ITM Hedging Agreements nominally relate,








then the Borrower shall immediately close out and terminate sufficient ITM Hedging Agreements (or part thereof) as is necessary to ensure that the aggregate notional principal amount of the ITM Hedging Agreements is no greater than 105% of the outstanding amount under the Facility to which such ITM Hedging Agreements relate.

120






Schedule 11


Existing Financial Indebtedness




Part I




Existing Financial Indebtedness


	
			
	





Debtor


' ---...;_.... _
	



:_   -.
Lender


- ..
	Financial Indebtedness


(£)

	Titan Europe Pic
	Lloyds
	'£7,500,000



	Titan ltalia S.p.A.
	BNL/Intesa Sanpaolo 


	'£2,770,000

	lntertractor USA
	lntesa Sanpaolo
	'£10,533,000

	Titan Europe Pic
	Pool of banks
	'£24,703,000

	Members of Titan Group
	Various
	£9,987,000 (financial lease)

	ITO
	lntesa Sanpaolo/Unicredit
	'£27,874,000

	ltaltractor Landroni Ltda
	lntesa Sanpaolo
	'£2,215,000





121






Part II




Existing Short Term Financial Indebtedness
	
			
	Debtor
	Lender
	Financial Indebtedness

	 
	 
	(£)

	Titan Europe Pic
	Lloyds
	'£7,500,000

	Titan ltalia S.p.A.
	BNUintesa Sanpaolo
	'£22,985,000

	Titan France S.a.s.
	Various
	'£1,719,000

	Titan Wheels Australia
	National Australian Bank
	'£2,427,000

	Aros del Pacifico S.A.
	BBVA
	'£1,514,000

	Aros del Pacifico S.A.
	Various
	'£65,000

	ITM
	lntesa Saopaolo/MPS
	'£17,189,000

	ITO 
	BNL
	'£5,760,000

	PYRSA
	Various
	'£3,173,000

	lntertractor
	Commerzbank
	'£3,716,000

	PYRSA
	Various
	'£781,000

	Titan Wheels Australia
	Various
	'£338,000









122