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EXHIBIT 1
USD 73,000,000
LOAN FACILITY AGREEMENT
between
AS WANGS FABRIK
as Borrower
and
THE BANKS AND FINANCIAL INSTITUTIONS NAMED HEREIN
as Banks
and
DEN NORSKE BANK ASA
as Agent
DATED 29 December 1998
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CONTENTS
Page
1. DEFINITIONS........................................................ 1
2. THE LOAN FACILITY.................................................. 5
3. PURPOSE............................................................ 5
4. CONDITIONS PRECEDENT............................................... 5
5. INTEREST........................................................... 7
6. REPAYMENT.......................................................... 7
7. DENOMINATION AND CALCULATIONS...................................... 8
8. REPRESENTATIONS, UNDERTAKINGS AND SECURITY......................... 8
9. USD UNAVAILABILITY................................................. 10
10. CHANGES IN CIRCUMSTANCES........................................... 10
11. FEES AND EXPENSES.................................................. 11
12. PAYMENTS........................................................... 12
13. EVENTS OF DEFAULT.................................................. 13
14. TRANSFER........................................................... 15
15. AGENCY............................................................. 15
16. NOTICES AND TIME................................................... 16
17. GOVERNING LAW AND JURISDICTION..................................... 17
EXHIBIT 1
BANK COMMITMENTS
EXHIBIT 2
FORM OF DRAWDOWN NOTICE
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This Loan Facility Agreement (the "AGREEMENT") is made on 29 December 1998
between:
(1) AS WANGS FABRIK of ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇ (the "BORROWER"); and
(2) THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN EXHIBIT 1 HERETO (the
"BANKS"); and
(3) DEN NORSKE BANK ASA of ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Foretaksregisteret NO 810 506 482 (The Register of Business
Enterprises), (as the "AGENT").
1. DEFINITIONS
1.1 As used in this Agreement and in any documents delivered
pursuant hereto, the following expressions shall have the
following meanings respectively:
"ACQUISITION AGREEMENT" means "Avtale om overdragelse av
konvertible lan" dated 22
December 1998 between AL
Industrier AS as seller and the
Borrower as buyer of USD
67,850,000 principle amount of
convertible subordinated notes
in Alpharma Inc.;
"AGGREGATE LOAN FACILITIES" means the aggregate of (i) the
AL-Loan and (ii) the Commitment;
"AL-LOAN" means the revolving credit
facility of up to NOK
166,000,000 granted by the Agent
to the Security Provider in
accordance with Loan Facility
Agreement dated 25 March 1998 as
amended;
"BANKING DAY" means a day upon which banks are
open for transactions
contemplated by this Agreement
in (a) Oslo, New York and
London, and (b) additionally in
relation to payments hereunder
the place for provision of funds
or due payment;
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"COMMITMENT" means USD 73,000,000 (as the
same may be reduced from time to
time in compliance with Clause
2.5);
"DRAWDOWN DATE" means a date upon which a
Drawing is advanced to the
Borrower;
"DRAWING" means an advance to the Borrower
in an amount of not less than
USD 1,000,000 of the Commitment;
"EVENT OF DEFAULT" means any of the events
specified in Clause 13;
"FACILITY" means the loan facility, the
terms and conditions of which
are set out in this Agreement;
"FINAL MATURITY DATE" means 31 August 2001;
"INTEREST PAYMENT DATE" means the last day of each
Interest Period;
"INTEREST PERIOD" means a period calculated in
accordance with the provisions
of Clause 5.1 or Clause 12.2;
"LIBOR" (London Interbank Offered Rate)
means the rate per annum
determined by the Agent as the
rate at which the Agent, in
accordance with its usual
practice, is offering comparable
lendings in the relevant
eurocurrency for the relevant
Interest Period in the London
Interbank Eurocurrency Market at
or about 11:00 a.m. London time
on the Quotation Date;
"LOAN" means the aggregate principal
amount of the Commitment for the
time being advanced and
outstanding hereunder;
"MARGIN" means (i) if Value Adjusted
Equity is five times the
Aggregate Loan Facilities or
more: 0,80 per cent per annum,
and (ii) if Value Adjusted
Equity is three times the
Aggregate Loan Facilities or
more but less than five times
the Aggregate Loan Facilities:
1,20 per cent per annum, and
(iii) if Value Adjusted Equity
is twice the Aggregate Loan
Facilities or more but less than
three times the Aggregate Loan
Facilities: 2,0 per cent per
annum, provided
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always that the applicable
margin as calculated under
either at (i), (ii) or (iii)
above shall be set in advance
for the whole calendar quarter
which commences immediately
subsequent to the expiry of the
present calendar quarter during
which the current figures of
Value Adjusted Equity are
presented to the Agent;
"MONTH(S)" means a period calculated from
any specified day to and
including the day numerically
corresponding to such specified
day (or, if such specified day
is the last day or if there
shall be no day numerically
corresponding to such specified
day, the last day) in the
relevant subsequent calender
month;
"NOK" means the lawful currency of
Norway;
"NOTE PURCHASE AGREEMENT" means the agreement entered into
on 5 March 1998 between Alpharma
Inc. as seller and AL Industrier
AS as buyer of up to USD
68,000,000 principle amount of
convertible subordinated notes
in Alpharma Inc.;
"QUOTATION DATE" means in relation to any
Interest Period for which an
interest rate is to be
determined hereunder (a) the day
on which quotations would
ordinarily be given in the
London Interbank Eurocurrency
Market for deposits in the
currency in relation to which
such rate is to be determined
for delivery on the first day of
that Interest Period, or (b) if
such earlier day is not a
Banking Day the preceding
Banking Day;
"SECURITY DOCUMENTS" means the documents listed in
Clause 8.3;
"SECURITY PROVIDER" means AL Industrier AS, the
holder of inter alia the total
number of shares in Dynal AS
being pledged as security for
the Loan hereunder and for the
AL-Loan;
"TAXES" means any taxes, levies, duties,
charges, fees, deductions and
withholdings levied or imposed
by any governmental or other
taxing authority whatsoever;
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"TERM DATE" means 31 July 2001;
"USD" means the lawful currency of the
United States of America; and
"VALUE ADJUSTED EQUITY" means, in respect of the
Security Provider, the aggregate
value at any time of
(i) yearly (on a 12 months
rolling basis) profit from
operations less royalty to
shareholders in Nopal AS
multiplied by 10, and
(ii) yearly (on a 12 months
rolling basis) profit from
operations after research and
development in Dynal AS
multiplied by 20, the sum of
which shall be further
multiplied by the Security
Provider's ownership interest
(expressed in per cent) in Dynal
AS, provided always that if and
when Dynal AS becomes listed on
any stock exchange, Dynal AS'
total consolidated stock value
multiplied by the Security
Provider's ownership interest
(expressed in per cent) in the
same shall comprise the value
applicable under this sub-
clause (ii), and
(iii) the aggregate number of
class B shares in Alpharma Inc.
owned by the Borrower and by the
Security Provider together,
multiplied by the listed value
on the New York Stock Exchange
of one class A share in Alpharma
Inc., and
(iv) the total number of class B
notes issued by Alpharma Inc.
owned by the Borrower,
multiplied by the face value (or
if class A notes are listed on
the New York Stock Exchange, the
listed value) of one class A
note, provided always that (a)
if the listed value on the New
York Stock Exchange of one class
A share in Alpharma Inc. is
below USD 9,50 or (b) if value
adjusted equity in Alpharma Inc.
(defined as the total number of
class A shares and class B
shares outstanding at any time
multiplied by the listed value
on the New York Stock Exchange
of one class A share in Alpharma
Inc.) is less than USD
243,000,000, the applicable
value to
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be calculated under this
sub-clause (iv) shall be zero.
2. THE LOAN FACILITY
2.1 The Banks shall take part in the Facility on a several basis
with the respective participations in the Commitment as listed
in Exhibit 1 hereto.
2.2 No Bank shall have the amount of its participation increased
or reduced as a result of the failure of any other Bank to
provide the amount of its participation.
2.3 Upon satisfaction of the conditions set out in Clause 4 the
Banks shall make the Commitment available to the Borrower
during the period from the date hereof up to and including the
Term Date.
2.4 Up to the Term Date this Borrower may utilize the Facility on
a revolving credit basis, such that any amount repaid prior to
the Term Date may be redrawn by the Borrower, subject to the
terms and conditions of this Agreement. Not more than 4
Drawings may be outstanding under the Law at any given time.
The aggregate of the Drawings shall at any time not exceed the
Commitment.
2.5 The Borrower may cancel any undrawn amount under the
Commitment in whole or in part by giving 10 Banking Days
irrevocable prior written notice of such amount to the Agent.
Any amounts cancelled may not be subsequently drawn.
3. PURPOSE
3.1 The Borrower shall apply the Commitment in financing the
purchase of USD 67,850,000 principal amount of convertible
subordinated notes issued by Alpharma Inc. from AL Industrier
AS in accordance with the terms of the Acquisition Agreement.
4. CONDITIONS PRECEDENT
4.1 A Drawing may be made on any Banking Day during the period
from the date hereof up to and including the Term Date,
provided:
(a) the Agent shall have received not less than 5 Banking
Days prior to the first proposed Drawdown Date the
following in form and content satisfactory to it:
(i) a counterpart of this Agreement duly signed
on behalf of the Borrower;
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(ii) a company certificate evidencing that the
Borrower is duly registered as a limited
company and a copy of its articles of
association;
(iii) a copy of the resolution of the board of
directors of (a) the Borrower approving the
execution and performance by the Borrower of
this Agreement and the relevant Security
Documents and specifying the persons
authorized to sign this Agreement and such
Security Documents on its behalf, and (b)
the Security Provider approving the
execution and performance by the Security
Provider of the relevant Security Documents
and specifying the persons authorized to
sign such Security Documents on its behalf;
(iv) the Security Documents;
(v) a copy of the Acquisition Agreement;
(vi) legal opinions(s) from such counsel in such
jurisdictions as the Agent may reasonably
have requested addressing questions or
circumstances of relevance to this Facility;
(vii) a copy of any consent necessary from
governmental or other authorities for the
execution of and performance under this
Agreement by the Borrower;
(b) the Agent shall have received not later than 12:00
noon Oslo time on the third Banking Day prior to each
proposed Drawdown Date an irrevocable written
drawdown notice, substantially in the form of Exhibit
2 attached hereto;
(c) the Agent shall not have received notice from any
Bank prior to 11:00 a.m. London time on the Quotation
Date prior to the Drawdown Date that it is unable to
obtain deposits in USD in the London Interbank
Eurocurrency Market in a sum necessary to fund its
participation in the Loan.
4.2 The Agent may, in its discretion, (i) extend the period for
delivery of any of the documents referred to above on such
conditions as it thinks fit, and (ii) require any copy
document to be certified as a true copy.
4.3 The Agent shall promptly notify each Bank of any notice
received pursuant to Clause 4.1 (b) or (c) and of compliance
with Clause 4.1 (a), and shall promptly notify the Borrower of
any notice received pursuant to Clause 4.1 (c).
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5. INTEREST
5.1 Each Interest Period shall begin on the Drawdown Date or, as
the case may be, on the Interest Payment Date in respect of
the preceding Interest Period and shall end on such date 1, 3,
6 or 12 months thereafter as the Borrower may elect, or such
other period as agreed between the Borrower and the Agent,
subject to availability, by not less than 3 Banking Days'
written notice to the Agent, provided that:
(a) if any Interest Period would otherwise end on a day
which is not a Banking Day it would be extended to
end on the succeeding Banking Day unless it would
thereby end in a new calendar month in which event it
shall be shortened to end on the preceding Banking
Day;
(b) subject to paragraph (c) below if no election is made
by the Borrower in respect of any Interest Period the
length of such Interest Period shall be 3 months;
(c) the availability of 1 month Interest Periods shall be
limited to 3 for each twelve month period after the
first Drawdown Date.
5.2 The Borrower shall pay interest on the Loan or the relevant
part thereof in arrears on each Interest Payment Date and
additionally in the case of an Interest Period exceeding 6
months duration at six-monthly intervals during such Interest
Period at the annual rate which is conclusively certified by
the Agent to be the aggregate of the applicable Margin and
LIBOR.
5.3 The Agent shall give notice to the Borrower and each Bank of
each interest rate fixed on the Quotation Date for the
relevant Interest Period, which notice shall, in the absence
of manifest error, be conclusive.
6. REPAYMENT
6.1 Each Drawing advanced and outstanding under the Agreement
shall be due and repayable on its respective Interest Payment
Date.
6.2 The Borrower shall repay the Loan in full on the earlier of
the date on which the conversion of the notes described in the
Note Purchase Agreement takes place and the Final Maturity
Date.
7. DENOMINATION AND CALCULATIONS
7.1 For the purpose of calculation of the applicable Margin
payable under Clause 5.2 hereof, all relevant figures shall be
denominated as follows:
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(a) Aggregate Loan Facilities shall mean the aggregate of
(i) the USD equivalent of the AL-Loan on the date of
calculation and (ii) the Commitment (as the same may
be reduced from time to time in compliance with
Clause 2.5);
(b) all amounts of Value Adjusted Equity as expressed in
NOK shall be converted to USD, based on the
applicable exchange rate between NOK and USD on the
date of calculation.
8. REPRESENTATIONS, UNDERTAKINGS AND SECURITY
8.1 The Borrower represents to the Agent and the Banks that:
(a) it is duly formed and validly existing under the laws
of Norway and has the power and has obtained all
necessary consents for the execution and performance
of this Agreement and the Security Documents to which
it is a party;
(b) this Agreement constitutes and those of the Security
Documents to which it is a party upon execution will
constitute valid, binding and enforceable obligations
of the Borrower, and the execution and performance of
this Agreement and such Security Documents do not and
will not contravene any applicable law, order,
regulation or restriction of any kind, including
contractual restrictions, binding on the Borrower;
(c) it is not in default under any other agreement to
which it is a party, nor is it in default in respect
of any financial commitment or obligation.
8.2 The Borrower undertakes to the Agent and the Banks that so
long as any amount is outstanding hereunder:
(a) it will promptly inform the Agent on behalf of the
Banks of any occurrence of which it becomes aware
which in its reasonable opinion might adversely
effect its ability to perform its obligations
hereunder or under any Security Document or
constitute an Event of Default;
(b) it will deliver to the Agent for distribution to the
Banks copies of (i) the annual audited accounts of
itself, the Security Provider and Alpharma Inc. not
later than 120 days after the end of each's
respective financial year (ii) the unaudited
quarterly reports of the same including balance
sheets, profit and loss statements and calculations
of Value Adjusted Equity within 60 days after the end
of each calendar quarter and (iii) such other
financial information as the Agent may reasonably
request;
(c) It will not make any further borrowings or enter into
any guarantee liabilities exceeding in aggregate NOK
5,000,000 or the equivalent in
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other currency(ies) without the prior written consent
of the Agent on behalf of the Majority Banks;
(d) it will not create, incur or allow to exist over any
of its assets any further mortgage, charge, pledge or
lien other than those mentioned in Clause 8.3 or, as
the case may be, use any existing security as
aforesaid (which may be released following repayment
in part or in full of the liabilities so secured) to
secure any other (new) financial obligation, without
the prior written consent of the Bank;
(e) it will, in the case of a sale of the whole or any
part of its shares in (or as the case may be
convertible subordinated notes Issued by) Alpharma
Inc., simultaneously with such sale, apply all
proceeds of such sale in repayment of the Loan, and
the Commitment shall be deemed to be cancelled in
part or in full in accordance with Clause 2.5 above
and be reduced accordingly;
(f) it will, in the case of any redemption or repurchase
by Alpharma Inc. of the convertible subordinated
notes issued by Alpharma Inc., simultaneously with
such redemption or repurchase, apply all amounts
received by it pursuant to such redemption or
repurchase in repayment of the Loan, and the
Commitment shall be deemed to be cancelled in part or
in full in accordance with Clause 2.5 above and be
reduced accordingly.
8.3 The Loan, and all amounts outstanding hereunder, shall be
secured by the following in form and content satisfactory to
the Agent:
(a) a pledge over the total number of shares in Dynal AS
executed by the Security Provider and generally
deposited with the Agent in accordance with a
declaration of pledge (pantsettelseserklaering);
(b) a pledge over the Borrower's 4,740,500 shares of
class B stock in Alpharma Inc.; and
(c) a pledge over the Borrower's 49,9 per cent of the
aggregate convertible subordinated notes issued by
Alpharma Inc.
In the event of an early repayment in part of the Loan and
partly cancellation of the Commitment as set out in Clause 8.2
(e) and (f) above, the Borrower and the Banks shall negotiate
to agree upon a reduction of the value of the security listed
in (a), (b) and (c) above proportionally to the amount of the
early repayment and cancellation which has taken place. A sale
of pledged shares in Dynal AS as described in Clause 8.3 (a)
shall give the Borrower and the Security Provider an exclusive
right to have released such shares from the security.
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9. USD UNAVAILABILITY
9.1 In the event that an any Quotation Date the Banks are unable
to obtain deposits in USD in the London Interbank Eurocurrency
Market to fund a Drawing or the Loan, the Agent shall
forthwith notify the Borrower and until such notice is
withdrawn the obligations of the Banks to advance any Drawing
shall be suspended. The Banks shall endeavor to fund the Loan
with USD from such other sources as may be available to them
and in such event the rate of interest payable on such amount
shall be the aggregate of the Margin and such rate as the
Banks may from time to time certify as being the cost to them
of funds in USD.
9.2 In the event that the Banks are unable to fund such amount
from alternative sources, the Agent shall forthwith notify the
Borrower and the Borrower shall repay such amount on the
earlier of the next following Interest Payment Date and the
date falling 5 Banking Days after receipt of such notice. In
the event that the Banks are able to fund such amount from
alternative sources but the Borrower considers the interest
rate so determined to be too high, it may prepay such amount
on giving the Agent not less then 7 Banking Days' irrevocable
written notice.
If at any time when the Banks are funding the Loan from
alternative sources the Agent determines that USD deposits are
available to them in the London Interbank Eurocurrency Market
the Agent shall forthwith notify the Borrower and the rate of
interest payable on such amount for the period from the expiry
of the then current period for funding from alternative
sources to the expiry of the then current Interest Period
determined under Clause 5.1 shall be the aggregate of the
Margin and such rate as the Agent may certify as the rate at
which the Banks are able to obtain deposits for such period as
aforesaid.
10. CHANGES IN CIRCUMSTANCES
10.1 If by reason of: (i) changes in any existing law, rule or
regulation, or (ii) the adoption of any new law, rule or
regulation, or (iii) any change in the interpretation or
administration of (i) or (ii) above by any governmental
authority, or (iv) compliance with any directive or request
from any governmental authority (whether or not having the
force of law):
(a) any of the Banks incurs a cost as a result of its
having entered into this Agreement and/or performing
its obligations hereunder; or
(b) there is an increase in the cost to any of the Banks
of maintaining or funding its portion of the
Commitment, the Loan or any advances hereunder; or
(c) any of the Banks becomes liable for any new taxes
(other than on net income) calculated by reference to
the Commitment or the Loan; or
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(d) any of the Banks becomes subject to any new or
modified capital adequacy or similar requirements
which will have the effect of increasing the amount
of capital required or expected to be maintained by
such Bank based on such Bank's obligations hereunder;
or
(e) any of the Banks' effective return hereunder is
reduced in any other manner;
then any such cost, liability or reduction of return as
referred to in the preceding paragraphs (a)-(e) shall be
payable by the Borrower upon request by the Agent either in
the form of an increased margin or in the form of an
indemnification. The relevant Bank shall via the Agent give
the Borrower notice within a reasonable time of its intention
to claim compensation under this Clause 10.1 and shall specify
the form and amount of such compensation. The relevant Bank's
determination of the amount of compensation to be made under
this Clause 10.1 shall, absent manifest error, be conclusive.
The Borrower shall be entitled to prepay such Bank's portion
of the Loan at any time following receipt of notice from the
Agent as aforesaid on giving not less than 7 Banking Days'
irrevocable written notice. In such event the Borrower shall
nevertheless compensate such Bank for such requested
indemnification for the period from its receipt of notice from
the Agent up to and including the date of prepayment.
10.2 In the event that it shall be unlawful for any Bank to make
available its portion of the Commitment or maintain or fund
its portion of the Loan hereunder then such Bank's obligations
shall terminate and all amounts owing by the Borrower to such
Bank shall become due and payable on demand by such Bank
through the Agent.
11. FEES AND EXPENSES
11.1 The Borrower shall pay to the Agent:
(a) for the account of the Banks, a commitment fee in
respect of the undrawn part of the Commitment for the
period from the date hereof (for each Bank from the
date when such Bank was committed, as the case may
be) up to and including the earlier of the date on
which the Commitment is fully utilized and the Term
Date, equal to 50 per cent of the applicable Margin
at such time calculated on the daily average undrawn
amount of the Commitment, such fee to be computed in
USD and shall be paid quarterly in arrears commencing
on the date hereof and finally on the day of such
period as aforesaid;
(b) upon demand, all expenses (including internal and
external legal and collateral fees of the Agent)
incurred by the Agent in connection with the
preparation, execution or termination of this
Agreement and any other documents delivered pursuant
to this Agreement or incurred by the Agent
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and the Banks in connection with the preservation or
enforcement of any rights hereunder and thereunder.
11.2 The obligations of the Borrower in Clause 11.1(b) above shall
survive the Final Maturity Date.
12. PAYMENTS
12.1 In the event that the date on which a payment is due to be
made hereunder is not a Banking Day, such date of payment
shall be the following Banking Day unless it would thereby
fall in a new calendar month in which event it shall be the
preceding Banking Day.
12.2 In the event that any payment to be made hereunder by the
Borrower to any Bank is not received by the Agent on the due
date therefor, interest will be charged by such Bank from the
due date until the date that payment is received at a rate
which is equal to the aggregate of (i) the applicable Margin,
(ii) a default funding charge of 3% per annum and (iii) the
rate at which deposits from one Banking Day to the next in an
amount approximately equal to the defaulted amount due to such
Bank are offered to such Bank in the London Interbank
Eurocurrency Market at approximately 11:00 am London time on
the due date for payment and on each succeeding Banking Day
until payment in full of the amount due is received by such
Bank; provided that if the Agent determines that such default
may be reasonably expected to continue unremedied for a period
exceeding one week then it may require by notice to the
Borrower that the funding cost shall be determined by
reference to the rate at which deposits are offered as
aforesaid for periods of such length (not exceeding three
months) as it may designate. Interest charged under this
Clause 12.2 shall be payable on demand and unless so paid
shall be added to the defaulted amount at the and of each
month following the due date for payment of such amount.
12.3 All payments to be made by the Borrower hereunder shall be
made without set-off or counterclaim.
12.4 All payments to be made by the Borrower hereunder shall be
made free and clear of and without deduction for or on account
of any present or future Taxes of any nature now or hereafter
imposed unless the Borrower is compelled by law to make
payment subject to any such Taxes. In that event the Borrower
shall (i) pay to the Agent for account of the Banks such
additional amounts as may be necessary to ensure that the
Banks receive a net amount equal to that which they would have
received had such payment not been made subject to any Taxes,
and (ii) deliver to the Agent within 10 Banking Days of any
request by it an official receipt in respect of the payment of
any Taxes so deducted.
12.5 If any amount of principal is, for any reason whatsoever,
repaid on a day other than the last day of the then current
Interest Period relating to such amount, the
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Borrower shall pay to the Agent for account of the Banks on
request such amount as may be necessary to compensate the
Banks for any loss or premium or penalty incurred by them in
respect of the liquidation or re-employment of funds borrowed
for the purpose of maintaining the amount repaid.
12.6 If the Agent pays any amount to a Bank or the Borrower which
has not but ought to have been paid to it by the Borrower or a
Bank (as the case may be) then unless such amount as paid
within 3 Banking Days of the due date such Bank or the
Borrower (as the case may be) shall refund such amount to the
Agent on demand. At the time such amount is paid or refunded
the person paying the same shall also pay interest to the
Agent on such amount at such rate per annum as reflects the
cost to the Agent of funding such amount during the period
from that time when such amount ought to have been paid to the
time when such amount was actually paid, provided, however,
that this shall not reduce the obligations of the Borrower
according to Clause 12.2 above.
12.7 Interest, commitment fee and any other payments hereunder of
an annual nature shall accrue from day to day and be
calculated on the actual number of days elapsed and on the
basis of a 360 day year.
13. EVENTS OF DEFAULT
13.1 The obligations of the Banks hereunder shall terminate
forthwith and any amount outstanding shall become immediately
due and payable together with interest thereon and the Banks
may exchange all or part of any outstanding amounts hereunder
to NOK or enforce their rights under this Agreement and the
Security Documents in the manner and order they deem
appropriate, if any of the following events occurs and the
Agent, upon the instruction of the Banks, gives notice to
their Borrower:
(a) if the Borrower falls to pay any sum due hereunder on
the due date and, to the extent such failure is
caused by any technical or administrative error,
within 3 Banking Days of the due date; or
(b) if the Borrower defaults in the due performance or
observance of any term or covenant contained herein
or in any Security Document and such default
continues unremedied for a period of 10 Banking Days
after the Agent has given to the Borrower notice of
such default; or
(c) if any material representation made by the Borrower
in this Agreement or in any notice, certificate or
statement delivered or made pursuant hereto proves to
have been inaccurate or misleading when made, or
(d) if any indebtedness in respect of borrowed money or
guarantee liabilities of the Borrower is not paid
when due or becomes due prior to the specified
payment date by reason of default; or
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(e) if a distress or other execution is levied upon or
against any substantial part of the assets of the
Borrower and is not discharged within 30 days: or
(f) if the Borrower is unable or admits in writing its
inability to pay its lawful debts as they mature, or
makes a general assignment for the benefit of its
creditors; or
(g) if any proceedings are commenced in or any order or
judgement is given by any court for the liquidation,
winding-up or reorganisation of the Borrower or for
the appointment of a receiver, trustee or liquidator
of the Borrower or all or any part of its assets
(save for the purpose of amalgamation or
reorganisation not involving insolvency the terms of
which have received the prior written approval of the
Agent on behalf of the Banks); or
(h) if the Borrower ceases or threatens to cease to carry
on its business or disposes or threatens to dispose
of a substantial part of its assets or the same are
seized or appropriated for any reason; or
(i) if any Security Document ceases to be in full force
and effect; or
(j) if any consent required for the performance by the
Borrower of its obligations hereunder is revoked or
is otherwise modified in a manner unacceptable to the
Agent; or
(k) if there is any material, in the opinion of the
Banks, change of ownership in the Borrower or in the
Security Provider without the prior written approval
of the Agent on behalf of the Banks; or
(l) if Value Adjusted Equity is or becomes less than
twice the Aggregate Loan Facilities any time
hereunder, provided that all relevant figures shall
be determined in accordance with Clause 7.1 hereof;
(m) if a situation arises which, in the opinion of the
Banks, will prevent fulfilment by the Borrower of its
obligations hereunder.
13.2 Clause 13.1 (d) - (i) shall also apply with respect to the
Security Provider.
14. TRANSFER
14.1 Any Bank may upon prior written consent from the Borrower
transfer all or part of its participation in the Facility to
any other bank or financial institution by giving not less
than 10 Banking Days' prior written notice to the Agent, which
shall promptly notify the Borrower. In event of transfer
references herein to such Bank shall be construed an
references to its transferee or transferees to the extent
necessary.
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15. AGENCY
15.1 Each Bank authorises the Agent to take such action on its
behalf and to exercise such powers as are specifically
delegated to it by the terms hereof together with all such
powers as are reasonably incidental thereto. The relationship
between the Agent and each Bank is that of agent and principal
only, and nothing herein shall (nor shall it be construed so
as to) constitute the Agent a trustee for any Bank or impose
on it any duties or obligations other than those for which
express provision is made herein.
15.2 Except as expressly provided herein the Agent shall distribute
promptly to the Banks all sums received from the Borrower
rateably in proportion to the amount of each Bank's
participation in the Facility.
15.3 The Agent will promptly advise each bank of any notice
received by it from the Borrower hereunder. The Agent shall
not be under any obligation towards any Bank to ascertain or
enquire as to the performance or observance of any of the
terms or conditions hereof or of the Security Documents to be
performed or observed by any other party hereto or thereto.
15.4 Each Bank shall indemnify, to the extent not reimbursed by the
Borrower, the Agent rateably according to the amount of its
participation in the Facility against any loss, expense
(including legal fees) or liability (except such as results
from the Agent's own gross negligence or wilful misconduct),
which the Agent may suffer or incur in connection with the
implementation, administration or enforcement of this
Agreement or any Security Document.
15.5 In performing its duties and exercising its powers hereunder
the Agent will be entitled to rely on (i) any communication
believed by it to be genuine and to have been sent or signed
by the person by whom it purports to have been sent and signed
and (ii) the opinions and statements of any professional
advisers selected by it in connection herewith and shall not
be liable to any other party hereto for any consequence of any
such reliance.
15.6 The Agent takes no responsibility for the truth of any
representations made herein nor for the adequacy or
enforceability of this Agreement and neither the Agent (except
in the case of gross negligence or willful misconduct) nor any
of its directors, officers or employees shall be liable for
any action taken or omitted by it or any of them.
15.7 Notwithstanding the agency hereinbefore constituted the Agent
may without liability to account make loans to, accept
deposits from and generally engage in any kind of banking or
trust business with the Borrower.
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15.8 Each Bank acknowledges that it has taken and will take such
independent action and make such investigations as it deems
necessary to inform itself as to the financial condition and
affairs of the Borrower.
16. NOTICES AND TIME
16.1 Every notice under this Agreement shall be in writing and may
be given or made by letter or telefax. Communications
hereunder shall be addressed as follows:
(a) if to the Agent, at P.0. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇,
telefax no. 22 48 10 46
Attention: Credit Administration;
(b) if to the Borrower, at ▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
telefax no. 22 52 91 50
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(c) if to the Banks at their respective addresses listed
in Exhibit 1 hereto:
or to such other address as one party may hereafter notify to
the other parties.
16.2 Communications sent by letter or telefax shall be effective
upon receipt. Any communication by telefax from the Borrower
to the Agent shall be confirmed by letter if so requested by
the Agent.
16.3 No failure or delay on the part of the Agent or the Banks to
exercise any power or right under this Agreement or the
Security Documents shall operate as a waiver thereof or of any
other power or right. The remedies provided herein are
cumulative and are not exclusive of any remedies provided by
law.
17. GOVERNING LAW AND JURISDICTION
17.1 This Agreement shall be governed by and construed in
accordance with Norwegian law.
17.2 The Borrower hereby irrevocably submits to the non-exclusive
jurisdiction of the Norwegian courts, the venue to be elected
by the Agent.
The Borrower:
AS WANGS FABRIK
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------------------
Name in Block letters: ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Board Members
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The Banks:
p.p. DEN NORSKE BANK ASA
By:
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Name in Block letters:
---------------------------------------
Title:
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The Agent:
p.p. DEN NORSKE BANK ASA
By:
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Name in Block letters:
---------------------------------------
Title:
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