NOK 166,000,000
USD 73,000,000
LOAN FACILITY AGREEMENT
between
AL INDUSTRIER AS
as Borrower
and
THE BANKS AND FINANCIAL INSTITUTIONS NAMED HEREIN
as Banks
and
DEN NORSKE BANK A&A
as Agent
DATED 25 Mars 1998
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CONTENTS
PAGE
1. DEFINITIONS 3
2. THE LOAN FACILITY 7
3. PURPOSE 8
4. CONDITIONS PRECEDENT 8
5. INTEREST 10
6. REPAYMENT 11
7. DENOMINATION AND CALCULATIONS 11
8. REPRESENTATIONS, UNDERTAKINGS AND SECURITY 11
9. USD UNAVAILABILITY 13
10. CHANGES IN CIRCUMSTANCES 14
11. FEES AND EXPENSES 15
12. PAYMENTS 16
13. EVENTS OF DEFAULT 17
14. TRANSFER 19
15. AGENCY 19
16. NOTICES AND TIME 21
17. GOVERNING LAW AND JURISDICTION 21
EXHIBIT 1
BANK COMMITMENTS
EXHIBIT 2
FORM OF DRAWDOWN NOTICE
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This Loan Facility Agreement (the "AGREEMENT") is made on 25 Mars 1998
between:
(1) AL INDUSTRIER AS of Harbitzalleen 3,0212 Oslo
(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 810 508 482 (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:
"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 payments;
"COMMITMENT" means Commitment A and Commitment B (as the same
may be reduced from time to time in compliance
with Clause 2.5);
"COMMITMENT A" means NOK 166,000,000;
"COMMITMENT B" means USD 73,000,000;
"DRAWDOWN DATE" means a date upon which a Drawing is advanced to
the Borrower;
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"DRAWING" means an advance to the Borrower in an amount
of (i) in case of a request under Commitment
A: not less than NOK 25,000,000 and (ii) in
case of a request under Commitment B: not
less than USD 1,000,000;
"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 of 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
Commitment A and Commitment B for the time
being advanced and outstanding hereunder;
"MARGIN" means (i) if Value Adjusted Equity is five
times the Commitment or more; 0.80 per cent
per annum, and (ii) if Value Adjusted Equity
is three times the Commitment or more but
less than five times the Commitment; 1.20
per cent per annum, and (iii) if Value
Adjusted Equity is
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twice the Commitment or more but
less than three times the
Commitment; 2.0 per cent per annum,
provided always that the applicable
margin as calculated under either
of (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 calendar month;
"NIBOR" (Norwegian 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 NOK for the
relevant Interest Period in the
Norwegian Interbank Market at or
about 12:00 noon Norwegian time in
the Quotation Date;
"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 the Borrower as buyer
of up to USD 68,000,000 principle
amount of convertible subordinated
notes;
"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
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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) it such earlier day
is not a Banking Day the preceding
Banking Day;
"SECURITY DOCUMENTS" means the documents listed in
Clause 8.3;
"TAXES" means any taxes, levies, duties,
charges, fees, deductions and
withholdings levied or imposed by
any governmental or other taxing
authority whatsoever;
"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 Borrower,
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 in
Dynal AS multiplied by 10. the sum
of which shall, for the purpose of
this definition in no event be
calculated to be less than NOK
400,000,000 and shall be further
multiplied by the Borrower'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 Borrower's ownership
interest (expressed in per
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cent) in the same shall comprise the
value applicable under the sub-clause
(ii), and
(iii) the aggregate number of class B
shares in Alpharma Inc. owned by the
Borrower and by AS Wangs Fabrik
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
in 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 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 Commitment A and Commitment B
respectively 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.
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2.4 Up to the Term Date the 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 8 Drawings may be
outstanding under Commitment A and Commitment B together at any given
time. The aggregate of the NOK-Drawings shall at any time not exceed
Commitment A, and the aggregate of the USD-Drawings shall at any time
not exceed Commitment B.
2.5 The Borrower may cancel any undrawn amount under either of Commitment
A or Commitment B 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 Commitment A partly in refinancing its
existing loans and partly for general corporate purposes and shall
apply Commitment B partly in financing the purchase of certain
convertible subordinated notes in accordance with the terms of the
Note Purchase Agreement and partly for general corporate purposes.
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;
(ii) a company certificate evidencing that the Borrower is
duly registered as a limited company and a copy of its
articles of association,
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(iii) a copy of the resolution of the board of directors of the
Borrower approving the execution and performance by the
Borrower of this Agreement and the Security Documents and
specifying the persons authorized to sign this Agreement
and such Security Documents on its behalf;
(iv) the Security Documents;
(v) a copy of the Note Purchase Agreement;
(vi) legal opinion(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, 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 shall 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
(i) in respect of an outstanding amount in USD; the applicable Margin
and LIBOR and (ii) in respect of an outstanding amount in NOK; the
applicable Margin and NIBOR.
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.
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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 as described
in Clause 5.2 hereof, all relevant figures shall be denominated as
follows:
(a) Commitment shall mean the aggregate of (i) the USD equivalent of
Commitment A on the date of calculation and (ii) Commitment B (as
both 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:
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(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 affect 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, Nopal AS, Dynal AS
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 50 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 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 (or as the case may be convertible subordinated notes) in
either of Dynal AS or Nopal AS or 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 partly
cancelled 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 in (as 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 partly cancelled in accordance with Clause 2.5 above
and be reduced accordingly.
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8.3 The Loans and all amounts outstanding hereunder, shall be secured by
the following in form and content satisfactory to the Agent:
(a) a pledge of the Borrower's shares in Nopal AS and of the
Borrower's shares in Dynal AS all as generally deposited with the
Agent in accordance with a declaration of pledge
(pantsettelseserklaering);
(b) a pledge over a total of 4,740,500 shares of class B stock in
Alpharma Inc. executed by AS Wangs Fabrik; and
(c) a pledge of up to 49.9 per cent of the aggregate convertible
subordinated notes in (as 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 Clauses 8.2 (e) and (a) shall give the Borrower an
exclusive right to have released such shares from security.
9 USD UNAVAILABILITY
9.1 In the event that on any Quotation date the Banks are unable to obtain
deposits in USD in the London Interbank Eurocurrency Market to the
fund a Drawing or the Loan, the Agent shall forthwith notify the
Borrower and until such notice is withdrawn the obligation of the
Banks to advance any Drawing shall be suspended. The Banks shall
endeavour to fund the Loan with USD from such other sources as may be
available to them and in 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
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amount on giving the Agent not less than 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
(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;
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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. FEE AND EXPENSES
11.1 The Borrower shall pay to the Agent:
(a) for the account of the Agent, on the date hereof, an arrangement
fee as set out in a separate letter from the Agent to the
Borrower;
(b) for the account of the Banks, a commitment fee in respect of the
undrawn part of Commitment A and Commitment B respectively 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 NOK
and/or in USD respectively and shall be paid quarterly in
arrears commencing on the date hereof and finally on the last
day of such period as aforesaid;
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(c) 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 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 (c) 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 fail 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 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 a.m. 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 it 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 end 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.
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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, unpaid on a
day other than the last day of the then current Interest Period
relating to such amount, the 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 is 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 time to
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 accure 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 USD as the case may be
or enforce their rights under this
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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 the Borrower:
(a) If the Borrower fails 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
(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 reorganization 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 shall have received the prior written approval of the Agent
on behalf of the Banks); or
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(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 AS Wangs Fabrik 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
Commitment 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 AS Wangs
Fabrik.
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
as references to its transferee or transferees to the extent
necessary.
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
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(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, expenses (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 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 wilful 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 ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
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 affective 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 cummulative 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.
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The Borrower
------------
AL INDUSTRIER AS
By /s/Sveere Bzertnbs ▇▇▇▇▇ Zltun
-------------------------------------------
Name in block letters U.K DIR ADM DIR
-------------------------
Title SVEERE BZERTNBS ▇▇▇▇▇ ZLTUN
-----------------------------------------
The Banks
---------
P.P. DEN NORSKE BANK ASA
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name in block letters ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
DEPUTY MANGING DIRECTOR/
Title HEAD OF CORPORATE DIVISION
-----------------------------------------
The Agent:
---------
p.p. DEN NORSKE BANK ASA
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name in block letters ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
DEPUTY HANGING DIRECTOR
Title HEAD OF CORPORATE DIVISION
-----------------------------------------
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EXHIBIT 1
BANK COMMITMENTS
----------------
Commitment A Commitment B
Den norske Bank ASA NOK 166,000,000 USD 73,000,000
▇-▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Telefax: 22 48 10 46
Attn: Credit Administration
-24-
EXHIBIT 2
F O R M O F
D R A W D O W N NO ▇ ▇ ▇ ▇
From: AL Industrier AS
To: Den norske Bank ASA
Attention: Credit Administration
Date: .........................
Dear Sirs,
We refer to a Loan Facility Agreement dated ................. 19.... (the
"AGREEMENT") made between inter alia ourselves as Borrower and Den norske Bank
ASA as Agent. Terms defined in the Agreement shall have the same meaning in this
notice.
We hereby give you irrevocable notice that pursuant to the Agreement and on
............. 19.... we wish to draw down the amount of ................. upon
the terms and subject to the conditions contained therein.
The Interest Period for the Drawing shall, subject to the provisions of the
Agreement, be of ...... months duration.
The Drawing, not of applicable fees and expenses described in Clause 11, shall
be transferred to the account of ................ with ..................,
account no. ......... ............
As of today no event has occurred which with or without notice and/or lapse of
time would constitute an Event of Default under the Agreement.
In the event that drawdown does not take place on the storementioned date, by
reasons beyond the control of the Agent and/or the Banks, we hereby undertake to
reimburse you as Agent and all the Banks for any and all costs incurred,
including but not limited to interest.
Yours faithfully,
AL INDUSTRIER AS
