Exhibit 2
DATED 22 December 1999
ANSALDO SIGNAL N.V.
AS BORROWER
ASTERISQUE S.A.
AS LENDER
---------------------------------------------------------
ITL 48,OOO,OOO,OOO
REVOLVING FACILITY AGREEMENT
---------------------------------------------------------
CLIFFORD CHANCE
CONTENTS
Clause Page
1. Definitions And Interpretation ......................................... 1
2. The Facility ........................................................... 7
3. Utilisation Of The Facility ............................................ 8
4. Payment And Calculation Of Interest .................................... 9
5. Market Disruption And Alternative Interest Rates ....................... 9
6. Repayment .............................................................. 10
7. Cancellation ........................................................... 10
8. Taxes .................................................................. 10
9. Tax Receipts ........................................................... 11
10. Increased Costs ........................................................ 12
11. Illegality ............................................................. 13
12. Mitigation ............................................................. 13
13. Representations ........................................................ 14
14. Financial Information .................................................. 16
15. Covenants .............................................................. 17
16. Events Of Default ...................................................... 17
17. Arrangement Fee ........................................................ 20
18. Costs And Expenses ..................................................... 20
19. Default Interest And Break Costs ....................................... 20
20. Borrower's Indemnities ................................................. 21
21. Currency Of Account And Payment ........................................ 22
22. Payments ............................................................... 22
23. Assignments ............................................................ 23
24. Calculations And Evidence Of Debt ...................................... 23
25. Remedies And Waivers, Partial Invalidity ............................... 24
26. Notices ................................................................ 24
27. Governing Law .......................................................... 25
28. Jurisdiction ........................................................... 25
Schedule 1 CONDITIONS PRECEDENT ........................................... 26
Schedule 2 NOTICE OF DRAWDOWN ............................................. 27
Schedule 3 PERMITTED ENCUMBRANCES ......................................... 28
THIS AGREEMENT is made on December 1999
BETWEEN
(1) ANSALDO SIGNAL N.V. (the "Borrower"); and
(2) ASTERISQUE S.A. (the "Lender").
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement the following terms have the meanings given to them in
this Clause 1.1.
"Advance" means an advance made or to be made by the Lender hereunder.
"Authorised Signatory" means, in relation to the Borrower, any person who
is duly authorised (in such manner as may be reasonably acceptable to the
Lender) and in respect of whom the Lender has received a certificate
signed by a director or another Authorised Signatory of the Borrower
setting out the name and signature of such person and confirming such
person's authority to act.
"Available Facility" means, at any time and save as otherwise provided
herein, ITL48,000,000,000 less the aggregate Advances which are then
outstanding and not due for repayment adjusted, in the case of any
proposed drawdown, so as to take into account:
(a) any Advance which, pursuant to any other drawdown, is to be made;
and
(b) any Advance which is due to be repaid,
on or before the proposed drawdown date.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in Amsterdam and Luxembourg.
"Encumbrance" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or claims to, or the benefit of, a bank or other account
may be applied, set off or made subject to a combination of accounts so as
to effect discharge of any sum owed or payable to any person or (c) any
other type of preferential arrangement (including any title transfer and
retention arrangement) having a similar effect.
"EURIBOR" means, in relation to any amount to be advanced to, or owing by,
the Borrower under this Agreement in euro on which interest for a given
-1-
period is to accrue, the percentage rate per annum equal to the offered
quotation which appears on the page of the Telerate Screen which displays
the rate of the Banking Federation of the European Union for the euro
(being currently page 248) for such period as of 11.00 a.m. (Brussels
time) on the Quotation Date for such period or, if such page or such
service shall cease to be available, such other page or such other service
for the purpose of displaying an average rate of the Banking Federation of
the European Union as the Lender shall select.
"Event of Default" means any circumstance described as such in Clause 16
(Events of Default).
"Facility" means the Lira revolving loan facility granted to the Borrower
in this Agreement.
"Facility Office" means the Lenders registered office in Luxembourg or
such other office as the Lender may nominate with the agreement of the
Borrower.
"Final Maturity Date" means 30 November 2002.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary or standby letter of credit facility or performance
bond facility;
(c) any interest rate swap, currency swap, forward foreign exchange
transaction, cap, floor, collar or option transaction or any other
treasury transaction or any combination thereof or any other
transaction entered into in connection with protection against or
benefit from fluctuation in any rate or price (and the amount of the
Financial Indebtedness in relation to any such transaction shall be
calculated by reference to the mark-to-market valuation of such
transaction at the relevant time); and
(d) any guarantee or indemnity for any of the items in paragraphs (a) to
(c) above.
"Group" means the Borrower and its subsidiaries, excluding the Lender, for
the time being.
"Indebtedness for Borrowed Money" means any indebtedness for or in respect
of:
(e) moneys borrowed;
-2-
(f) any amount raised by acceptance under any acceptance credit
facility;
(g) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(h) any amount raised pursuant to any issue of shares which are
expressed to be redeemable;
(i) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with generally accepted
accounting principles in the relevant jurisdiction, be treated as a
finance or capital lease;
(j) the amount of any liability in respect of any advance or deferred
purchase agreement if one of the primary reasons for entering into
such agreement is to raise finance;
(k) receivables sold or discounted (other than on a non-recourse basis);
(l) any agreement or option to re-acquire an asset if one of the primary
reasons for entering into such agreement or option is to raise
finance;
(m) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing; and
(n) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (i) above.
"Loan" means the aggregate principal amount for the time being outstanding
hereunder.
"Margin" means 0.87 per cent. per annum.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Group taken as a whole; (b) the ability of the Borrower
to perform its obligations under this Agreement; or (c) the validity or
enforceability of this Agreement or the rights or remedies of the Lender
hereunder.
"Notice of Drawdown" means a notice substantially in the form set out in
Schedule 2 (Notice of Drawdown).
"Original Financial Statements" means the audited financial statements of
the Borrower for its financial year ended 31 December 1998.
"Permitted Encumbrance" means:
-3-
(a) any Encumbrance specified in Schedule 3 (Existing Encumbrances), if
the principal amount thereby secured is not increased;
(b) any Encumbrance over or affecting any asset acquired by a member of
the Group after the date hereof and subject to which such asset is
acquired, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such asset by a member of the Group;
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the acquisition of
such asset by a member of the Group; and
(iii) such Encumbrance is removed or discharged within three months
of the date of acquisition of such asset;
(c) any Encumbrance over or affecting any asset of any company which
becomes a member of the Group after the date hereof, where such
Encumbrance is created prior to the date on which such company
becomes a member of the Group, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such company;
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the acquisition of
such company; and
(iii) such Encumbrance is removed or discharged within three months
of such company becoming a member of the Group;
(d) any netting or set-off arrangement entered into by any member of the
Group in the normal course of its banking arrangements for the
purpose of netting debit and credit balances;
(e) any title transfer or retention of title arrangement entered into by
any member of the Group in the normal course of its trading
activities on the counterparty's standard or usual terms; and
(f) any lien arising by operation of law and in the normal course of
business, if such lien is discharged within ten days of arising.
"Quotation Date" means, in relation to any period for which an interest
rate is to be determined hereunder, the day on which quotations would
ordinarily be given by prime banks for deposits in euro for delivery on
the first day of that period, provided that, if, for any such period,
quotations would ordinarily be given on more than one date, the Quotation
Date for that period shall be the last of those dates.
-4-
"Repayment Date" means, in relation to any Advance, the last day of the
Term thereof or, if earlier, the date on which the Lender requires all
amounts outstanding under the Facility to be fully repaid pursuant to
Clause 6.2.
"Repeated Representations" means each of the representations set out in
Clause 13.1 (Status) to Clause 13.9 (Written Information).
"Rollover Advance" means an Advance which is used to refinance a maturing
Advance and which is in the same amount as such maturing Advance and is to
be drawn on the day such maturing Advance is to be repaid.
"Term" means, save as otherwise provided herein:
(a) in relation to any Advance, the period for which such Advance is
borrowed as specified in the Notice of Drawdown relating thereto;
and
(b) in relation to an Unpaid Sum, any of those periods mentioned in
Clause 19.1 (Default Interest Periods).
"Treaty on European Union" means the Treaty of Rome of 25 March 1957, as
amended by the Single European Act 1986 and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"Unpaid Sum" means the unpaid balance of any of the sums referred to in
Clause 19.1 (Default Interest Periods).
1.2 Interpretation
Any reference in this Agreement to:
"continuing", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in accordance
with the terms hereof;
"indebtedness" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "law" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgment, treaty, regulation, directive,
bye-law, order or any other legislative measure of any government,
supranational, local government, statutory or regulatory body or court;
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that, where any such period would otherwise
end on a
-5-
day which is not a Business Day, it shall end on the next succeeding
Business Day, unless that day falls in the calendar month succeeding that
in which it would otherwise have ended, in which case it shall end on the
immediately preceding Business Day, provided that, if a period starts on
the last Business Day in a calendar month or if there is no numerically
corresponding day in the month in which that period ends, that period
shall end on the last Business Day in that later month;
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
"repay" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "prepay" (or, as the case may be, the
corresponding derivative form thereof);
a "subsidiary" of a company or corporation shall be construed as a
reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the first-mentioned
company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is able
to direct its affairs and/or to control the composition of its board of
directors or equivalent body;
a "successor" shall be construed so as to include an assignee or successor
in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"tax" shall be construed so as to include any tax, levy, impost, duty or
other charge 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);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time; and
-6-
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which such
company or corporation carries on business including the seeking of
liquidation, winding-up, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors.
1.3 Currency Symbols
"euro" and "EUR" means the single currency of the European Union as
constituted by the Treaty on European Union and "euro unit" means the
currency unit of the euro.
"Lira" and "ITL" are references to the subdenomination of the euro which
is at the date hereof legal tender in the Republic of Italy.
1.4 Agreements and Statutes
Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have been,
or may from time to time be, amended, varied, novated or
supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 Headings
Clause and Schedule headings are for ease of reference only.
1.6 Time
Any reference in this Agreement to a time of day shall, unless a contrary
indication appears, be a reference to Central European time.
1.7 Third Party Rights
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement.
2. THE FACILITY
2.1 Grant of the Facility
The Lender grants to the Borrower through the Facility Office, upon the
terms and subject to the conditions hereof, a Lira revolving loan facility
in an aggregate amount of ITL48,000,000,000.
-7-
2.2 Purpose and Application
The Facility is intended for general corporate purposes and, accordingly,
the Borrower shall apply all amounts raised by it hereunder in or towards
satisfaction of its general corporate financing requirements and the
Lender shall not be obliged to concern itself with such application.
2.3 Conditions Precedent
Save as the Lender may otherwise agree, the Borrower may not deliver any
Notice of Drawdown unless the Lender has confirmed to the Borrower that it
has received all of the documents and other evidence listed in Schedule 1
(Conditions Precedent) and that each is, in form and substance,
satisfactory to the Lender.
3. UTILISATION OF THE FACILITY
3.1 Delivery of Notice of Drawdown
The Borrower may from time to time request the making of an Advance by the
delivery to the Lender, not more than ten nor less than five Business Days
before the proposed date for the making of such Advance, of a completed
Notice of Drawdown therefor.
3.2 Drawdown Details
Each Notice of Drawdown delivered to the Lender pursuant to Clause 3.1
(Delivery of Notice of Drawdown) shall specify:
3.2.1 the proposed date for the making of the Advance requested, which
shall be a Business Day falling one month or more before the Final
Maturity Date and which shall be at least five Business Days after
the date upon which the previous Advance (if any) was made;
3.2.2 the amount of the Advance requested, which shall be (a) (if less
than the Available Facility) an amount or integral multiple of
ITL8,000,000,000 or (b) equal to the amount of the Available
Facility;
3.2.3 the proposed Term of the Advance requested, which shall be a period
of one, two or three months or such other period as the Lender may
agree ending on or before the Final Maturity Date or, if earlier,
the date on which the Lender has required all amounts outstanding
under the Facility to be repaid pursuant to Clause 6.2; and
3.2.4 the account to which the proceeds of the proposed drawdown are to be
paid.
3.3 Drawdown Conditions
If the Borrower requests an Advance in accordance with the preceding
provisions of this Clause 3 and, on the proposed date for the making of
such Advance:
-8-
3.3.1 (save in relation to a Rollover Advance) the event mentioned in
Clause 5.1 (Market Disruption) has not occurred;
3.3.2 such Advance does not exceed the Available Facility; and
3.3.3 on and as of the proposed date for the making of such Advance (a) no
Event of Default is continuing and (b) the Repeated Representations
are true in all material respects,
then, save as otherwise provided herein, such Advance will be made in
accordance with the provisions hereof.
4. PAYMENT AND CALCULATION OF INTEREST
4.1. Payment of Interest
On the Repayment Date relating to each Advance the Borrower shall pay
accrued interest on that Advance.
4.2 Calculation of Interest
The rate of interest applicable to an Advance from time to time during its
Term shall be the rate per annum which is the same of the Margin and
EURIBOR on the Quotation Date therefor.
5. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
5.1 Market Disruption
If in relation to any Advance as of 11.00 a.m. on the Quotation Date for
the relevant Term EURIBOR is not available for the relevant term the
Lender shall notify the Borrower and, notwithstanding anything to the
contrary in this Agreement, Clause 5.2 (Substitute Term and Interest Rate)
shall apply to such Advance (if it is a Rollover Advance). Any proposed
Advance other than a Rollover Advance shall not be made.
5.2 Substitute Term and Interest Rate
If Clause 5.1 (Market Disruption) applies to a Rollover Advance, the
duration of the relevant Term shall be one month or, if less, such that it
shall end on the Final Maturity Date and the rate of interest applicable
to such Rollover Advance during the relevant Term shall (subject to any
agreement reached pursuant to Clause 5.3 (Alternative Rate)) be the rate
per annum which is the sum of:
5.2.1 the Margin; and
5.2.2 the rate per annum notified to the Borrower before the last day of
such Term to be that which expresses as a percentage rate per annum
the cost to the Lender of funding from whatever sources it may
select such Rollover Advance during such Term.
-9-
5.3 Alternative Rate
If the event mentioned in Clause 5.1 (Market Disruption) occurs in
relation to an Advance and the Lender or the Borrower so requires, the
Lender and the Borrower shall enter into negotiations with a view to
agreeing a substitute basis (a) for determining the rates of interest from
time to time applicable to the Advances and/or (b) upon which the Advances
may be maintained (whether in euro or some other currency) thereafter and
any such substitute basis that is agreed shall take effect in accordance
with its terms and be binding on each party hereto.
6. REPAYMENT
6.1 The Borrower shall repay each Advance made to it in full on the Repayment
Date relating thereto.
6.2 The Lender may at any time by notice in writing to the Borrower require
the Borrower to repay in full all amounts outstanding under the Facility
on such date preceding the Final Maturity Date as shall be specified in
such notice (and which shall be a date not earlier than 5 days after the
date on which such notice is given or such other period as the Lender and
the Borrower may agree) and in such event that Borrower shall on the date
so specified (which shall become the Repayment Date of each Advance then
outstanding) repay all Advances in full and the Facility shall be
cancelled.
7. CANCELLATION
7.1 Cancellation
The Borrower may, by giving to the Lender not less than ten Business Days'
prior notice to that effect, cancel the whole or any part (being an amount
or integral multiple of ITL8,000,000,000 of the Available Facility.
7.2 Notice of Cancellation
Any notice of cancellation given by the Borrower pursuant to Clause 7.1
(Cancellation) shall be irrevocable and shall specify the date upon which
such cancellation is to be made and the amount of such cancellation.
7.3 No Other Repayments
The Borrower shall not repay all or any part of any Advance except at the
times and in the manner expressly provided herein.
8. TAXES
8.1 Tax Gross-up
All payments to be made by the Borrower to the Lender hereunder shall be
made free and clear of and without deduction for or on account of tax
unless the Borrower is required to make such a payment subject to the
deduction or withholding of tax, in which case the sum payable by the
Borrower (in respect of which such deduction or withholding is required to
be made) shall
-10-
be increased to the extent necessary to ensure that the Lender receives a
sum net of any deduction or withholding equal to the sum which it would
have received had no such deduction or withholding been made or required
to be made.
8.2 Tax Indemnity
Without prejudice to Clause 8.1 (Tax Gross-up), if the Lender is required
to make any payment of or on account of tax on or in relation to any sum
received or receivable hereunder (including any sum deemed for purposes of
tax to be received or receivable by the Lender whether or not actually
received or receivable) or if any liability in respect of any such payment
is asserted, imposed, levied or assessed against the Lender, the Borrower
shall, upon demand of the Lender, promptly indemnify the Lender against
such payment or liability, together with any interest, penalties, costs
and expenses payable or incurred in connection therewith, provided that
this Clause 8.2 shall not apply to any tax imposed on and calculated by
reference to the net income actually received or receivable by the Lender
(but, for the avoidance of doubt, not including any sum deemed for
purposes of tax to be received or receivable by the Lender but not
actually receivable) by the jurisdiction in which the Lender is
incorporated.
8.3 Claims by the Lender
If the Lender intends to make a claim pursuant to Clause 8.2 (Tax
Indemnity), it shall notify the Borrower of the event giving rise to the
claim.
9. TAX RECEIPTS
9.1 Notification of Requirement to Deduct Tax
If, at any time, the Borrower is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter there
is any change in the rates at which or the manner in which such deductions
or withholdings are calculated), the Borrower shall promptly notify the
Lender.
9.2 Evidence of Payment of Tax
If the Borrower makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full
amount required to be deducted or withheld to the relevant taxation or
other authority within the time allowed for such payment under applicable
law and shall deliver to the Lender, within thirty days after it has made
such payment to the applicable authority, an original receipt (or a
certified copy thereof) issued by such authority evidencing the payment to
such authority of all amounts so required to be deducted or withheld in
respect of such payment.
9.3 Tax Credit Payment
If an additional payment is made under Clause 8 (Taxes) by the Borrower
for the benefit of the Lender and the Lender, in its sole discretion,
determines
-11-
that it has obtained (and has derived full use and benefit from) a credit
against, a relief or remission for, or repayment of, any tax, then, if and
to the extent that the Lender, in its sole opinion, determines that:
9.3.1 such credit, relief, remission or repayment is in respect of or
calculated with reference to the additional payment made pursuant to
Clause 8 (Taxes); and
9.3.2 its tax affairs for its tax year in respect of which such credit,
relief, remission or repayment was obtained have been finally
settled,
the Lender shall, to the extent that it can do so without prejudice to the
retention of the amount of such credit, relief, remission or repayment,
pay to the Borrower such amount as the Lender shall, in its sole opinion,
determine to be the amount which will leave the Lender (after such
payment) in no worse after-tax position than it would have been in had the
additional payment in question not been required to be made by the
Borrower.
9.4 Tax Credit Clawback
If the Lender makes any payment to the Borrower pursuant to Clause 9.3
(Tax Credit Payment) and the Lender subsequently determines, in its sole
opinion, that the credit, relief, remission or repayment in respect of
which such payment was made was not available or has been withdrawn or
that it was unable to use such credit, relief, remission or repayment in
full, the Borrower shall reimburse the Lender such amount as the Lender
determines, in its sole opinion, is necessary to place it in the same
after-tax position as it would have been in if such credit, relief,
remission or repayment had been obtained and fully used and retained by
the Lender.
9.5 Tax and Other Affairs
No provision of this Agreement shall interfere with the right of the
Lender to arrange its tax or any other affairs in whatever manner it
thinks fit, oblige the Lender to claim any credit, relief, remission or
repayment in respect of any payment under Clause 8 (Taxes) in priority to
any other credit, relief, remission or repayment available to it nor
oblige the Lender to disclose any information relating to its tax or other
affairs or any computations in respect thereof.
10. INCREASED COSTS
10.1 Increased Costs
If by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request or requirement of
any fiscal, monetary or other authority:
10.1.1 the Lender incurs a cost as a result of the Lender's entering
into or assuming or maintaining a commitment or performing its
obligations under this Agreement; or
-12-
10.1.2 there is any increase in the cost to the Lender of funding or
maintaining the Advances or any Unpaid Sum,
then the Borrower shall, from time to time on demand of the Lender,
promptly pay to the Lender amounts sufficient to indemnify the Lender or
to enable the Lender to indemnify its holding company from and against, as
the case may be, (i) such cost or (ii) such increased cost, but excluding
any cost, increased cost or liability compensated by Clause 8 (Taxes).
10.2 Increased Costs Claims
If the Lender intends to make a claim pursuant to Clause 10.1 (Increased
Costs) it shall notify the Borrower of the event giving rise to such
claim.
11. ILLEGALITY
If, at any time, it is or will become unlawful for the Lender to make,
fund or allow to remain outstanding all or part of the Advances, then the
Lender shall, promptly after becoming aware of the same, deliver to the
Borrower a notice to that effect and:
11.1.1 the Lender shall not thereafter be obliged to make any Advances
and the amount of the Available Facility shall be immediately
reduced to zero; and
11.1.2 if the Lender so requires, the Borrower shall on such date as the
Lender shall have specified repay any outstanding Advances
together with accrued interest thereon and all other amounts
owing hereunder.
12. MITIGATION
If circumstances arise which would or would upon the giving of notice
result in:
12.1.1 an increase in any sum payable to it or for its account pursuant
to Clause 8.1 (Tax Gross-up);
12.1.2 a claim for indemnification pursuant to Clause 8.2 (Tax
Indemnity) or Clause 10.1 (Increased Costs); or
12.1.3 the reduction of the Available Facility to zero or any repayment
to be made by the Borrower pursuant to Clause 11 (Illegality)
then, without in any way limiting, reducing or otherwise qualifying the
rights of the Lender or the obligations of the Borrower under any of the
Clauses referred to above, the Lender shall promptly upon becoming aware
of such circumstances notify the Borrower thereof and, in consultation
with the Borrower and to the extent that it can do so lawfully and without
-13-
prejudice to its own position, take reasonable steps (including a change
of location of its Facility Office or the transfer of its rights, benefits
and obligations hereunder to another financial institution acceptable to
the Borrower and willing to participate in the Facility) to mitigate the
effects of such circumstances, provided that the Lender shall be under no
obligation to take any such action if, in the opinion of the Lender, to do
so might have any adverse effect upon its business, operations or
financial condition (other than any minor costs and expenses of an
administrative nature).
13. REPRESENTATIONS
The Borrower makes the representations and warranties set out in Clause
13.1 (Status) to Clause 13.14 (No immunity) and acknowledges that the
Lender has entered into this Agreement in reliance on those
representations and warranties.
13.1 Status
It is a corporation duly organised under the laws of the Netherlands.
13.2 Governing Law and Judgments
In any proceedings taken in its jurisdiction of incorporation in relation
to this Agreement, the choice of English law as the governing law of this
Agreement and any judgment obtained in England will be recognised and
enforced.
13.3 Binding Obligations
The obligations expressed to be assumed by it in this Agreement are legal
and valid obligations binding on it and enforceable against it in
accordance with the terms hereof.
13.4 Execution of this Agreement
Its execution of this Agreement and its exercise of its rights and
performance of its obligations hereunder do not and will not:
13.4.1 conflict with any agreement, mortgage, bond or other instrument
or treaty to which it is a party or which is binding upon it or
any of its assets;
13.4.2 conflict with its constitutive documents; or
13.4.3 conflict with any applicable law.
It has the power to enter into this Agreement and all corporate and other
action required to authorise the execution of this Agreement and the
performance of its obligations hereunder has been duly taken.
13.5 No Winding-up
No member of the Group has taken any corporate action nor have any other
steps been taken or legal proceedings been started or (to the best of its
knowledge and belief) threatened against any member of the Group for its
-14-
winding-up, dissolution, administration or re-organisation (whether by
voluntary arrangement, scheme of arrangement or otherwise) or for the
appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or all
of its assets or revenues.
13.6 No Material Defaults
No member of the Group is in breach of or in default under any agreement
to which it is a party or which is binding on it or any of its assets to
an extent or in a manner which might have a Material Adverse Effect.
13.7 No Material Proceedings
No action or administrative proceeding of or before any court or agency
which might have a Material Adverse Effect has been started or threatened.
13.8 No Material Adverse Change
Since the date as at which the most recent audited consolidated financial
statements of the Borrower were stated to be prepared, there has been no
material adverse change in the business or financial condition of any
member of the Group.
13.9 Written Information
All written information supplied by the Borrower is true, complete and
accurate in all material respects as at the date it was given and is not
misleading in any respect.
13.10 Validity and Admissibility in Evidence
All acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable it lawfully to enter into, exercise its
rights under and perform and comply with the obligations expressed to be
assumed by it in this Agreement, (b) to ensure that the obligations
expressed to be assumed by it in this Agreement are legal, valid, binding
and enforceable and (c) to make this Agreement admissible in evidence in
its jurisdiction of incorporation have been done, fulfilled and performed.
13.11 Claims Pari Passu
Under the laws of its jurisdiction of incorporation in force at the date
hereof, the claims of the Lender against it under this Agreement will rank
at least pari passu with the claims of all its other unsecured and
unsubordinated creditors save those whose claims are preferred solely by
any bankruptcy, insolvency, liquidation or other similar laws of general
application.
13.12 No Filing or Stamp Taxes
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it is not necessary that this Agreement be filed, recorded or
enrolled with any court or other authority in such jurisdiction or that
any stamp, registration or similar tax be paid on or in relation to this
Agreement.
-15-
13.13 No Deduction or Withholding
Under the laws of its jurisdiction of incorporation in force at the date
hereof it will not be required to make any deduction or withholding from
any payment it may make hereunder.
13.14 No Immunity
In any proceedings taken in its jurisdiction of incorporation in relation
to this Agreement, it will not be entitled to claim for itself or any of
its assets immunity from suit, execution, attachment or other legal
process.
13.15 Repetition of Representations
The Repeated Representations shall be deemed to be repeated by the
Borrower by reference to the facts and circumstances then existing on each
date on which an Advance is or is to be made.
14. FINANCIAL INFORMATION
14.1 Annual Statements
The Borrower shall as soon as the same become available, but in any event
within 180 days after the end of each of its financial years, deliver to
the Bank its financial statements for such financial year, audited by an
internationally recognised firm of independent auditors licensed to
practise in the Netherlands.
14.2 Semi-annual Statements
The Borrower shall as soon as the same become available, but in any event
within 90 days after the end of each half of each of its financial years,
deliver to the Lender its financial statements for such period.
14.3 Requirements as to Financial Statements
The Borrower shall ensure that each set of financial statements delivered
by it pursuant to this Clause 14 is:
14.3.1 prepared on the same basis as was used in the preparation of its
Original Financial Statements and in accordance with accounting
principles generally accepted in the Netherlands and consistently
applied; and
14.3.2 certified by an Authorised Signatory of the Borrower as giving a
true and fair view of its financial condition as at the end of
the period to which those financial statements relate and of the
results of its operations during such period.
14.4 Other Financial Information
The Borrower shall from time to time on the request of the Lender, furnish
the Lender with such information about the business and financial
condition of the Group as the Lender may reasonably require.
-16-
15. COVENANTS
15.1 Maintenance of Legal Validity
The Borrower shall obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by the laws of its
jurisdiction of incorporation to enable it lawfully to enter into and
perform its obligations under this Agreement and to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction
of incorporation of this Agreement.
15.2 Notification of Events of Default
The Borrower shall promptly inform the Lender of the occurrence of any
Event of Default and, upon receipt of a written request to that effect
from the Lender, confirm to the Lender that, save as previously notified
to the Lender or as notified in such confirmation, no Event of Default has
occurred.
15.3 Negative Pledge
The Borrower shall ensure that no member of the Group shall create or
permit to subsist any Encumbrance over, without the prior consent of the
Lender, or any of its present or future revenues or assets other than a
Permitted Encumbrance.
16. EVENTS OF DEFAULT
Each of Clause 16.1 (Failure to Pay) to Clause 16.12 (Material Adverse
Change) describes circumstances which constitute an Event of Default for
the purposes of this Agreement.
16.1 Failure to Pay
The Borrower fails to pay any sum due from it hereunder at the time, in
the currency and in the manner specified herein.
16.2 Specific Covenants
The Borrower fails duly to perform or comply with any of the obligations
expressed to be assumed by it in Clause 14 (Financial Information) or
Clause 15 (Covenants).
16.3 Misrepresentation
Any representation or statement made or deemed to be made by the Borrower
in this Agreement or in any notice or other document, certificate or
statement delivered by it pursuant hereto or in connection herewith is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made.
16.4 Other Obligations
The Borrower fails duly to perform or comply with any other obligation
expressed to be assumed by it in this Agreement and such failure, if
capable
-17-
of remedy, is not remedied within thirty days after the Lender has given
notice thereof to the Borrower.
16.5 Cross Default
Any Financial Indebtedness of any member of the Group is not paid when
due, any Financial Indebtedness of any member of the Group is declared to
be or otherwise becomes due and payable prior to its specified maturity,
any commitment for any Financial Indebtedness of any member of the Group
is cancelled or suspended by a creditor of any member of the Group or any
creditor of any member of the Group becomes entitled to declare any
Financial Indebtedness of any member of the Group due and payable prior to
its specified maturity, provided that it shall not constitute an Event of
Default if the aggregate amount (or its equivalent in euro) of all such
Financial Indebtedness is less than ITL5,000,000,000.
16.6 Insolvency and Rescheduling
Any member of the Group is unable to pay its debts as they fall due,
commences negotiations with any one or more of its creditors with a view
to the general readjustment or rescheduling of its indebtedness or makes a
general assignment for the benefit of or a composition with its creditors.
16.7 Winding-up
Any member of the Group takes any corporate action or other steps are
taken or legal proceedings are started for its winding-up, dissolution,
administration or re-organisation (whether by way of voluntary
arrangement, scheme of arrangement or otherwise) or for the appointment of
a liquidator, receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or all
of its revenues and assets.
16.8 Execution or Distress
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any part of, the property, undertaking or
assets of any member of the Group or any event occurs which under the laws
of any jurisdiction has a similar or analogous effect.
16.9 Failure to Comply with Final Judgment
Any member of the Group fails to comply with or pay any sum due from it
under any final judgment or any final order made or given by any court of
competent jurisdiction.
16.10 Repudiation
The Borrower repudiates this Agreement or does or causes to be done any
act or thing evidencing an intention to repudiate this Agreement.
16.11 Illegality
At any time it is or becomes unlawful for the Borrower to perform or
comply with any or all of its obligations hereunder or any of the
obligations of the
-18-
Borrower hereunder are not or cease to be legal, valid, binding and
enforceable.
16.12 Material Adverse Change
Any event or circumstance occurs which the Lender reasonably believes
might have a material adverse effect on the ability of the Borrower to
perform or comply with its obligations hereunder.
16.13 Acceleration and Cancellation
Upon the occurrence of an Event of Default and at any time thereafter,
whilst it is continuing, the Lender may by notice to the Borrower:
16.13.1 declare all or any part of the Advances to be immediately due and
payable (whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by the
Borrower hereunder) or declare all or any part of the Advances to
be due and payable on demand of the Lender; and/or
16.13.2 declare that the Facility shall be cancelled, whereupon the same
shall be cancelled and the Available Facility reduced to zero.
16.14 Advances Due on Demand
If, pursuant to Clause 16.13 (Acceleration and Cancellation), the Lender
declares all or any part of the Advances to be due and payable on demand
of the Lender, then, and at any time thereafter, the Lender may by notice
to the Borrower:
16.14.1 require repayment of all or such part of the Advances on such
date as it may specify in such notice (whereupon the same shall
become due and payable on the date specified together with
accrued interest thereon and any other sums then owed by the
Borrower hereunder) or withdraw its declaration with effect from
such date as it may specify; and
16.14.2 declare that the Facility shall he cancelled, whereupon the same
shall be cancelled and the Available Facility reduced to zero.
16.15 Length of Terms
If, pursuant to Clause 16.13 (Acceleration and Cancellation), the Lender
declares the Advances to be due and payable on demand of the Lender, the
Term in respect of any such Advance shall, if the Lender subsequently
demands payment before the scheduled Repayment Date in respect of such
Advance, be deemed (except for the purposes of Clause 19.4 (Break Costs)
to be of such length that it ends on the date that such demand is made.
-19-
17. ARRANGEMENT FEE
The Borrower shall pay to the Lender the sum of ITL240,000,000 specified
in the letter of even date herewith from the Lender to the Borrower at the
times, and in the amounts, specified in such letter.
18. COSTS AND EXPENSES
18.1 Transaction Expenses
The Borrower shall, from time to time on demand of the Lender, reimburse
the Lender for all costs and expenses (including legal fees) together with
any VAT thereon incurred by it in connection with the negotiation,
preparation and execution of this Agreement, any other document referred
to in this Agreement and the completion of the transactions herein
contemplated.
18.2 Preservation and Enforcement of Rights
The Borrower shall, from time to time on demand of the Lender, reimburse
the Lender for all costs and expenses (including legal fees) on a full
indemnity basis together with any VAT thereon incurred in or in connection
with the preservation and/or enforcement of any of the rights of the
Lender under this Agreement and any other document referred to in this
Agreement.
18.3 Stamp Taxes
The Borrower shall pay all stamp, registration and other taxes to which
this Agreement, any other document referred to in this Agreement or any
judgment given in connection therewith is or at any time may be subject
and shall, from time to time on demand of the Lender, indemnify the Lender
against any liabilities, costs, claims and expenses resulting from any
failure to pay or any delay in paying any such tax.
18.4 Amendment Costs
If the Borrower requests any amendment, waiver or consent then the
Borrower shall, within five Business Days of demand by the Lender,
reimburse the Lender for all costs and expenses (including legal fees)
together with any VAT thereon incurred by such person in responding to or
complying with such request.
19. DEFAULT INTEREST AND BREAK COSTS
19.1 Default Interest Periods
If any sum due and payable by the Borrower hereunder is not paid on the
due date therefor in accordance with Clause 22 (Payments) or if any sum
due and payable by the Borrower under any judgment of any court in
connection herewith is not paid on the date of such judgment, the period
beginning on such due date or, as the case may be, the date of such
judgment and ending on the date upon which the obligation of the Borrower
to pay such sum is discharged shall be divided into successive periods,
each of which (other than the first) shall start on the last day of the
preceding such period and the
-20-
duration of each of which shall (except as otherwise provided in this
Clause 19) be selected by the Lender.
19.2 Default Interest
An Unpaid Sum shall bear interest during each Term in respect thereof at
the rate per annum which is one per cent. per annum above the percentage
rate which would apply if such Unpaid Sum had been an Advance in the
amount and currency of such Unpaid Sum and for the same Term, provided
that if such Unpaid Sum relates to an Advance which became due and payable
on a day other than the last day of the Term thereof:
19.2.1 the first such Term applicable to such Unpaid Sum shall be of a
duration equal to the unexpired portion of the current Term
relating to that Advance; and
19.2.2 the percentage rate of interest applicable thereto from time to
time during such period shall be that which exceeds by one per
cent. the rate which would have been applicable to it had it not
so fallen due.
19.3 Payment of Default Interest
Any interest which shall have accrued under Clause 19.2 (Default Interest)
in respect of an Unpaid Sum shall be due and payable and shall be paid by
the Borrower on the last day of its Term or on such other dates as the
Lender may specify by notice to the Borrower.
19.4 Break Costs
If the Lender receives or recovers all or any part of an Advance or Unpaid
Sum otherwise than on the last day of the Term thereof, the Borrower shall
pay to the Lender on demand an amount equal to the amount (if any) by
which (a) the additional interest which would have been payable on the
amount so received or recovered had it been received or recovered on the
last day of the Term thereof exceeds (b) the amount of interest which in
the opinion of the Lender would have been payable to the Lender on the
last day of the Term thereof in respect of a Lira deposit equal to the
amount so received or recovered placed by it with a prime bank in
Luxembourg for a period starting on the third Business Day following the
date of such receipt or recovery and ending on the last day of the Term
thereof.
20. BORROWER'S INDEMNITIES
20.1 Borrower's Indemnity
The Borrower undertakes to indemnify the Lender against:
20.1.1 any cost, claim, loss, expense (including legal fees) or
liability together with any VAT thereon, whether or not
reasonably foreseeable, which it may sustain or incur as a
consequence of the occurrence of any Event of Default or any
default by the Borrower in
-21-
the performance of any of the obligations expressed to be assumed
by it in this Agreement;
20.1.2 any cost or loss it may suffer or incur as a result of its
funding or making arrangements to fund an Advance requested by
the Borrower but not made by reason of the operation of any one
or more of the provisions hereof.
20.2 Currency Indemnity
If any sum (a "Sum") due from the Borrower under this Agreement or any
order or judgment given or made in relation hereto has to be converted
from the currency (the "First Currency") in which such Sum is payable into
another currency (the "Second Currency") for the purpose of:
20.2.1 making or filing a claim or proof against the Borrower; or
20.2.2 obtaining or enforcing an order or judgment in any court or other
tribunal
the Borrower shall indemnify the Lender from and against any loss suffered
or incurred as a result of any discrepancy between (a) the rate of
exchange used for such purpose to convert such Sum from the First Currency
into the Second Currency and (b) the rate or rates of exchange available
to the Lender at the time of receipt of such Sum.
21. CURRENCY OF ACCOUNT AND PAYMENT
Lira is the currency of account and payment for each and every sum at any
time due from the Borrower hereunder, provided that:
21.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
21.1.2 each payment pursuant to Clause 8.2 (Tax Indemnity), Clause 10.1
(Increased Costs) or Clause 20.1 (Borrower's Indemnity) shall be
made in the currency specified by the party claiming thereunder.
22. PAYMENTS
22.1 Payments to the Lender
On each date on which this Agreement requires an amount to be paid by the
Borrower, the Borrower shall make the same available to the Lender for
value on the due date at such time and in such funds and to such account
with such bank as the Lender shall specify from time to time.
22.2 Payments to the Borrower
22.2.1 On each date on which this Agreement requires an amount to be
paid by the Lender, the Lender shall make the same available to
the
-22-
Borrower in such funds and to such account with such bank as the
Borrower shall specify from time to time.
22.2.2 A payment will be deemed to have been made by the Lender on the
date on which it is required to be made under this Agreement if
the Lender has, on or before that date, taken steps to make that
payment in accordance with the regulations or operating
procedures of the clearing system used by the Lender in order to
make the payment.
22.3 No Set-off
All payments required to be made by the Borrower hereunder shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
23. ASSIGNMENTS
23.1 Binding Agreement
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors.
23.2 No Assignments and Transfers by the Borrower
The Borrower shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder.
23.3 Assignments by the Lender
The Lender may, at any time, assign all or any of its rights and benefits
hereunder to any person.
24. CALCULATIONS AND EVIDENCE OF DEBT
24.1 Basis of Accrual
Interest, commitment commission and fees shall accrue from day to day and
shall be calculated on the basis of a year of 360 days (or, in any case
where market practice differs, in accordance with market practice) and the
actual number of days elapsed.
24.2 Evidence of Debt
The Lender shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it hereunder
and, in any legal action or proceeding arising out of or in connection
with this Agreement, the entries made in such accounts shall be prima
facie evidence of the existence and amounts of the specified obligations
of the Borrower.
24.3 Certificates of the Lender
A certificate of the Lender as to (a) the amount by which a sum payable to
it hereunder is to be increased under Clause 8.1 (Tax Gross-up), (b) the
amount for the time being required to indemnify it against any such cost,
payment or liability as is mentioned in Clause 8.2 (Tax indemnity), Clause
10.1
-23-
(Increased Costs), or Clause 20.2 (Borrower's Indemnity) or (c) the amount
of any credit, relief, remission or repayment as is mentioned in Clause
9.3 (Tax Credit Payment) or Clause 9.4 (Tax Credit Clawback) shall, in the
absence of manifest error, be prima facie evidence of the existence and
amounts of the specified obligations of the Borrower.
25. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
25.1 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of the
Lender, any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise thereof or the exercise of any other right
or remedy. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
25.2 Partial Invalidity
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or
impaired thereby.
26. NOTICES
26.1 Communications in Writing
Each communication to be made hereunder shall be made in writing and,
unless otherwise stated, shall be made by fax or letter.
26.2 Delivery
Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall:
26.2.1 if by way of fax (unless that other person has by fifteen days'
notice specified another number) be made to such other person to
the fax number identified with its signature below and shall be
deemed to have been received when transmission has been
completed; and
26.2.2 if by way of letter (unless that other person has by fifteen
days' notice specified another address) be delivered to that
other person at the address identified with its signature below
and shall be deemed to have been delivered when left at that
address or, as the case may be, ten days after being deposited in
the post postage prepaid in an envelope addressed to it at that
address,
26.3 English Language
Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or
-24-
accompanied by a translation thereof into English certified (by an officer
of the person making or delivering the same) as being a true and accurate
translation thereof.
27. GOVERNING LAW
This Agreement is governed by English law.
28. JURISDICTION
28.1 English Courts
The courts of England have exclusive jurisdiction to settle any dispute (a
"Dispute") arising out of or in connection with this Agreement (including
a dispute regarding the existence, validity or termination of this
Agreement or the consequences of its nullity)
28.2 Convenient Forum
The parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes between them and, accordingly, that
they will not argue to the contrary.
28.3 Non-Exclusive Jurisdiction
This Clause 28 is for the benefit of the Lender only. As a result and
notwithstanding Clause 28.1 (English Courts), it does not prevent the
Lender from taking proceedings relating to a Dispute ("Proceedings") in
any other courts with jurisdiction. To the extent allowed by law, the
Lender may take concurrent Proceedings in any number of jurisdictions.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
-25-
SCHEDULE 1
CONDITIONS PRECEDENT
1. A copy, certified as at the date of this Agreement a true and up-to-date
copy by an Authorised Signatory of the Borrower of its constitutional
documents.
2. A copy, certified as at the date of this Agreement a true and up-to-date
copy by an Authorised Signatory of the Borrower, of a board resolution of
the Borrower approving the execution, delivery and performance of this
Agreement and the terms and conditions hereof and authorising a named
person or persons to sign this Agreement and any documents to be delivered
by the Borrower pursuant hereto.
3. A certificate of an Authorised Signatory of the Borrower setting out the
names and signatures of the persons authorised to sign, on behalf of the
Borrower, this Agreement and any documents to be delivered by the Borrower
pursuant hereto.
4. A certificate of an Authorised Signatory of the Borrower confirming that
utilisation of the Facility would not breach any restriction of its
borrowing powers.
-26-
SCHEDULE 2
NOTICE OF DRAWDOWN
From: Ansaldo Signal N.V.
To: Asterisque S.A.
Dated:
Dear Sirs,
1. We refer to the agreement (the "Facility Agreement") dated [ ] December
1999 and made between Ansaldo Signal N.V. as borrower and Asterisque S.A.
as lender. Terms defined in the Facility Agreement shall have the same
meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Facility Agreement and
upon the terms and subject to the conditions contained therein, we wish an
Advance to be made to us as follows:
(a) Amount:
(b) Drawdown Date:
(c) Term:
4. We confirm that, at the date hereof, the Repeated Representations are true
in all material respects and no Event of Default is continuing.
5. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully
------------------
Authorised Signatory
for and on behalf of
Ansaldo Signal N.V.
-27-
SCHEDULE 3
PERMITTED ENCUMBRANCES
-28-
SIGNATURES
The Borrower
ANSALDO SIGNAL N.V. /s/ [Illegible]
By:
Address: World Trade Center
Schipol Boulevard 267
1118 BET Schipol
The Netherlands
Fax: 00 31 20 405 98 42
The Lender
ASTERISQUE S.A. /s/ [Illegible]
By:
Address: 31 Boulevard du Prence Henry
L17-24 Luxembourg
Luxembourg
Fax: 00 35 2 22 15 91
Attention:
For the purposes of Article 1 of the Protocol annexed to the Convention on
Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters
signed at Brussels on 27 September 1968, the undersigned expressly and
specifically agree to the terms of Clause 28.1.
ASTERISQUE S.A
By: /s/ [Illegible]
-29-