Exhibit 1
USD 33,000,000
L O A N F A C I L I T Y A G R E E M E N T
between
A L C H E M Y A S
as Borrower
and
D E N N O R S K E B A N K A S A
and
G J E N S I D I G E N O R S P A R E B A N K A S A
as Banks
and
D E N N O R S K E B A N K A S A
as Agent
DATED 29 October 2002
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C O N T E N T S
1. DEFINITIONS 3
2. THE LOAN FACILITY 6
3. PURPOSE 7
4. CONDITIONS PRECEDENT 7
5. USD UNAVAILABILITY 8
6. INTEREST 9
7. REPAYMENT 10
8. PREPAYMENT 10
9. REPRESENTATIONS, UNDERTAKINGS AND SECURITY 11
10. CHANGES IN CIRCUMSTANCES 13
11. FEES AND EXPENSES 14
12. PAYMENTS 15
13. EVENTS OF DEFAULT 16
14. TRANSFER 18
15. AGENCY 18
16. NOTICES AND TIME 20
17. GOVERNING LAW AND JURISDICTION 21
EXHIBIT 1
BANK COMMITMENTS
EXHIBIT 2
FORM OF DRAWDOWN NOTICE
EXHIBIT 3
FORM OF RENEWAL NOTICE
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This Loan Facility Agreement (the "AGREEMENT") is made on 29 October 2002
between:
(1) XX XXXXX AS of Harbitzalleen 3, 0212 Oslo
Foretaksregisteret NO 982 789 818
(the "BORROWER"); and
(2) DEN NORSKE BANK ASA of Stranden 21, Oslo, Norway
Foretaksregisteret NO 810 506 482, and
GJENSIDIGE NOR SPAREBANK ASA of Xxxxxxxxxx 00, 0000 Xxxx
Foretaksregisteret NO 984 851 006
(the "BANKS"); and
(3) DEN NORSKE BANK ASA of Stranden 21, Oslo, Norway (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 and London,
and (b) additionally in relation to
payments hereunder the place for
provision of funds or due payment;
"COMMITMENT" means USD 33,000,000 (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;
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"DRAWING" means an advance to the Borrower in an
amount of not less than USD 3,000,000;
"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;
"GUARANTEE" means the unconditional and
irrevocable guarantee by the Guarantor
of all the Borrower's obligations
under this Agreement;
"GUARANTOR" means AL Industrier ASA,
Foretaksregisteret NO 000 000 000;
"INTEREST BEARING DEBT" means, for the purpose of this
Agreement, any principal amount
outstanding under this Facility;
"INTEREST PAYMENT DATE" means the last day of each Interest
Period;
"INTEREST PERIOD" means a period calculated in
accordance with the provisions of
Clause 6.1 or Clause 12.2;
"LIBOR" (London Interbank Offered Rate) means
in relation to a Drawing and in
respect of any Interest Period (a) the
rate per annum equal to the offered
quotation for deposits in amounts
equal to that Drawing or the Loan (and
for periods equal to the Interest
Period of that Drawing or the Loan)
ascertained by the Agent to be the
rate established by the British
Bankers' Association and appearing on
Reuters page LIBOR 01, published by
Reuters through its monitor service or
any equivalent successor to such
service at or about 11.00 a.m. (London
time) on the applicable Quotation
Date; or (b) if no such rate is
available, the arithmetic mean of the
rate per annum at which the Banks are
able to acquire USD in the amount and
for the Interest
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Period equal to such Drawing in the
London interbank market at or about
11.00 a.m. (London time) on the
applicable Quotation Date, as (in the
absence of manifest error)
conclusively certified by the Agent to
the Borrower;
"LOAN" means the aggregate principal amount
for the time being advanced being
advanced and outstanding hereunder;
"MARGIN" means 3 % p.a. as adjusted in
accordance with Clause 6.4;
"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;
"NOK" means the lawful currency of Norway;
"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
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;
"RELATED PERSON" means, in relation to the Borrower,
AS Xxxxx Xxxxxx, AL Finans AS, AS
Nopal, Agrovekst AS and the Guarantor,
any shareholder owning or otherwise
controlling directly or indirectly 10%
or more of any of them and
additionally any relative (e.i. person
related by blood or marriage) to such
shareholder;
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"REPAYMENT DATE" means 30 June 2003;
"SECURITY DOCUMENTS" means the documents listed in
Clause 9.3;
"XXXXXXXX-FAMILY" means Xxxxx X. Xxxxxxxx, his children,
his grandchildren, the EWS Foundation
and any company which is owned or
otherwise controlled directly or
indirectly by any of them;
"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 30 May 2003;
"TRANCHE" means any part of the Loan drawn and
outstanding under this Agreement being
a specified amount and having a
separate Interest Period;
"USD" means the lawful currency of the
United States of America being a
specified amount and having a separate
Interest Period; and
"VALUE ADJUSTED EQUITY" means, in respect of the Borrower,
AS Wangs Fabrik and the Guarantor on
consolidated basis, the sum of (1) the
value at any time of their aggregate
shares of class B in Alpharma Inc.,
provided that the value of each share
of class B shall be equal to the bid
price at such time of one share of
class A as noted on the New York Stock
Exchange, (2) the consolidated
operating result of the Nopal AS group
for the latest 12 months multiplied by
10 and (3) the value of the property
Harbitzalleen 3/5, such value at any
time to be fixed at USD 5,000,000.
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2. THE LOAN FACILITY
2.1 The Banks shall participate in the Facility on a several basis
with the respective percentages of 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 Not more than 3 Drawings may be made hereunder.
2.5 The Borrower may cancel any undrawn amount of the Commitment in
whole or in part by giving not less than 10 Banking Days
irrevocable prior written notice of such cancellation to the
Agent. Amounts cancelled may not be subsequently drawn.
3. PURPOSE
3.1 The Borrower shall apply the Commitment to (i) refinance
existing debt and (ii) cover any possible tax liability incurred
from the sale of the Guarantor's shares in Dynal Biotech ASA.
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 specifying the persons
authorised to sign this Agreement on its
behalf;
(iv) the Security Documents;
(v) a company certificate evidencing that the
Guarantor is duly registered as a limited
company and a copy of its articles of
assosiation;
(vi) a copy of the resolution of the board of
directors of the Guarantor approving the
execution and performance by the Guarantor of
the Guarantee and the Security Documents and
specifying the person(s) authorized to sign
the Guarantee and the Security Documents on
its behalf;
(b) the Agent shall have received not later than 12:00
noon Oslo time on the fourth Banking Day prior to
each proposed Drawdown Date an irrevocable written
drawdown notice substantially in the form of Exhibit
2 attached hereto; and
(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 market
in a sum necessary to fund its participation in the
Loan.
4.2 The Agent may, in its discretion, 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).
5. USD UNAVAILABILITY
5.1 In the event that on any Quotation Date the Banks are unable to
obtain deposits in USD in the London interbank 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
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advance any Drawing shall be suspended. The Banks shall
endeavour to fund the Drawing or 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.
5.2 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
than 7 Banking Days' irrevocable written notice.
If at any time when the Banks are funding the Drawing or the
Loan from alternative sources the Agent determines, pursuant to
an understanding to that effect between the Banks, that USD
deposits are available to them in the London interbank 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 6.1 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.
6. INTEREST
6.1 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 or 6
months thereafter as the Borrower may elect, subject to
availability, by not less than 4 Banking Days' prior 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;
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(c) if any Interest Period determined pursuant to the
foregoing provisions would extend beyond the
Repayment Date such Interest Period shall be
shortened to end on the Repayment Date;
(d) the availability of 1 month Interest Periods shall be
limited to 3 times during the term of the Loan.
6.2 The Borrower shall pay interest on the Loan or the relevant
Tranche in arrears on each Interest Payment Date and
additionally in the case of an Interest Period exceeding 3
months duration at three-monthly intervals during such Interest
Period at the annual rate which is conclusively certified by the
Agent to be the aggregate of the Margin and LIBOR.
6.3 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.
6.4 The Margin shall be subject to adjustment proportionate to the
adjustment of the margin under the USD 900,000,000 syndicated
credit facility to Alpharma Inc. dated 5 October 2001 as later
amended in accordance with the terms set out thereunder. Any
adjustment of the Margin hereunder shall take place
simultaneously with the adjustment of the margin being effected
under the syndicated facility as aforesaid.
7. REPAYMENT
7.1 The Borrower shall repay the Loan together with all amounts
outstanding hereunder on the Repayment Date.
8. PREPAYMENT
8.1 The Borrower may prepay the Loan without penalty in whole or in
part on any Interest Payment Date subject to the Agent having
received not less than 5 Banking Days prior to such date
irrevocable written notice of the amount to be prepaid.
8.2 Any sum prepaid may not be redrawn by the Borrower.
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9. REPRESENTATIONS, UNDERTAKINGS AND SECURITY
9.1 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 will upon execution
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;
(d) it has no other borrowings or guarantee liabilities
except as disclosed to the Banks as of the date hereof
; and
(e) it has provided the Guarantor with all material
information relating to this Agreement and the
Security Documents, including the content of Clause
13.
9.2 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 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) its annual audited accounts not
later than 150 days after the end of its financial
year (ii) an unaudited quarterly report including
balance sheet and profit and loss statement within 50
days after the end of each calendar quarter and (iii)
such other financial or other information as the Agent
may reasonably request;
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(c) it will not, and will procure that AS Wangs Fabrik and
the Guarantor shall not, make any further borrowings,
enter into any guarantee liabilities or make any
further investments without the prior written consent
of the Agent on behalf of the Banks;
(d) it will not, and will procure that AS Wangs Fabrik and
the Guarantor shall 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 9.3 without the prior written consent of the
Agent on behalf of the Banks;
(e) it will not, and will procure that AS Wangs Fabrik and
the Guarantor shall not, make any payment of dividend
or any other form of financial distribution to any of
its owners or any subsidiaries or associated companies
without the prior written consent of the Agent on
behalf of the Banks, provided however that the payment
of interest which is due and payable under any intra
group loan shall, for the purpose of this Clause 9.2
(e), not be considered to be a financial distribution;
(f) it will procure that there will be no change in
ownership of it or of AS Wangs Fabrik, and that
neither of them will be party to any merger,
consolidation or similar action, without the prior
written consent of the Agent on behalf of the Banks;
(g) it will not, and will procure that AS Wangs Fabrik, AL
Finans AS, AS Nopal, Agrovekst AS and the Guarantor
shall not, enter into any agreement or effect any
material transaction with a Related Person except on
sound commercial terms which shall be approved by the
Agent on behalf of the Banks;
(h) it will not, and will procure that AS Xxxxx Fabrik and
the Guarantor shall not, repay any intra-group loan or
credit without first having repaid all outstanding
debt to the Banks hereunder and any intra-group debt
of the Borrower shall be subordinate to ordinary
creditors;
(i) it will not, and will procure that AS Xxxxx Xxxxxx,
AL Finans AS, AS Nopal, Agrovekst AS and the Guarantor
shall not, without the prior written consent of the
Agent on behalf of the Banks, sell, transfer or
otherwise dispose of any assets, except for
transactions effected in the ordinary course of
business. The same shall apply to any company which
pursuant to the Norwegian
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Limited Liability Companies Act section 1-3 is a
subsidiary of any of the aforementioned companies,
exclusive, however, of Alpharma Inc. The Agent on
behalf of the Banks may require as a condition for
granting such consent that all proceeds from any
such sale, transfer or other kind of disposal of
assets be applied against the drawn and outstanding
amount hereunder, provided always that the proceeds
of any sale, transfer of other kind of disposal by
AS Nopal of any of its assets shall be applied
firstly against any outstanding debt to Gjensidige
NOR Sparebank ASA and secondly against the Loan
outstanding hereunder.
9.3 The Loan, and all amounts outstanding hereunder, shall be
secured by the following in form and content satisfactory to the
Agent:
(a) a first priority pledge of all the Guarantor's shares
in AS Nopal, AS Wangs Fabrik, AL Finans AS and the
Borrower;
(b) a mortgage over the Guarantor's property Harbitzalleen
3/5, gnr. 31 bnr. 60 and 161 in Oslo, amounting to NOK
300,000,000, ranking in priority subject to a lease
agreement between the Guarantor as lessor and Alpharma
AS as lessee dated 28 September 1994;
(c) the Guarantee.
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 it
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
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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 it 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 in accordance
with Clause 8 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 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.
10.3 Neither the Agent nor any Bank shall be liable for any failure
to perform the whole or any part of this Agreement resulting
directly or indirectly from the action or inaction or purported
action of any government or other authority or any strike,
lockout, boycott, blockade, or war affecting the Bank.
10.4 If at any time any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any respect under the laws
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
laws of any other jurisdiction shall in any way be affected or
impaired thereby.
11. FEES AND EXPENSES
11.1 The Borrower shall pay to the Agent:
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(a) for the account of the Banks (i) on the date of the
Borrower's acceptance of the term sheet as presented
by the Banks prior to this Agreement, an arrangement
fee of 0.5 % flat of the Commitment and (ii) on the
first Drawdown Date, or if earlier, the date falling
5 Banking Days after the date hereof, an arrangement
fee of 0.5 % flat of the Commitment;
(b) for the account of the Banks, a commitment fee in
respect of the undrawn part of the Commitment for the
period from 1 December 2002 up to and including the
earlier of the date the Commitment is fully utilised
and the Term Date, of 50% of the applicable Margin at
any time, calculated on the daily average undrawn
amount of the Commitment, such fee to be payable
quarterly in arrears first time 28 February 2003 and
finally on the last day of such period as aforesaid;
(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/or
thereunder.
11.2 The obligations of the Borrower in Clause 11.1 (c) above shall
survive the final Repayment 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 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 market at
approximately 11:00 a.m. London time on the due date for payment
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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 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.
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 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 the time when such amount ought to
have
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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 or of a 365 day year in the case of GBP and BEF or in any
case where market practice differs, in accordance with market
practice.
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
and/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 the
Borrower:
(a) if the Borrower fails to pay any sum due hereunder on
the due date unless such failure results from
technical error in which case a remedy period of
three Banking Days shall apply; 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 in the event that
such default, in the reasonable opinion of the Banks
is capable of remedy, 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
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(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
judgment 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 shall 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 or by the
Guarantor of its obligations under the Guarantee is
revoked or is otherwise modified in a manner
unacceptable to the Agent; or
(k) if there is any change of the present ownership
situation in the Guarantor so that the
Sissener-family no longer owns or through agreement
or otherwise controls 40 % or more of the voting
power of the Guarantor, without the prior written
approval of the Agent on behalf of the Banks; or
(l) if the ratio, which shall be reported by the Borrower
to the Agent quarterly within 60 days after the end
of each calendar quarter and additionally, in respect
of each year end, within 90 days after the end of
each calendar year, of Value Adjusted Equity/Interest
Bearing Debt at any time hereunder falls below 2,5;
or
(m) if a situation arises which, in the opinion of the
Banks, after consultation with the Borrower, will
prevent fulfilment by the Borrower of its obligations
hereunder or by the Guarantor of its obligations
under the Guarantee.
13.2 Clause 13.1 (d) - (h) shall also apply with respect to the
Guarantor and AS Wangs Fabrik.
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14. TRANSFER
14.1 Any Bank may 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. Any transfer
shall require the prior written consent of the Borrower, such
consent not to be unreasonably withheld. 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 impose on the Agent 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 and any material fact or
circumstance of which it has actual knowledge. 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 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
-20-
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 the Agent
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 therefore make loans to, accept
deposits from and generally engage in any kind of banking or
other business with the Borrower. The Agent and each Bank shall
have the right (but no obligation) to set-off the total amount
due hereunder from the Borrower to the Agent and the Banks
against any claim the Borrower has against the Agent or such
Bank (including any amount standing to the credit of any bank
account), irrespective of such claims being nominated in
different currencies. If any Bank shall at any time receive
payment (whether by set-off, counterclaim or otherwise) and the
result thereof is that it receives an amount which is greater in
proportion to its participation than the amount received by any
other Bank in proportion to such Bank's participation, then the
receiving Bank shall, through the Agent, distribute such payment
among the Banks in proportion to their pro rata participations
in the Loan.
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. Each Bank shall be responsible for
making its own assessment of the financial condition and affairs
of the Borrower in connection with the making and continuance of
the Loan and has made its own appraisal of the creditworthiness
of the Borrower.
15.9 The Agent may grant waivers and consents, vary the terms of this
Agreement and do or omit to do all such acts and things in
connection with this Agreement as may be authorised in writing
by the Banks. Any such waiver, consent, variation, act or
omission so authorised and effected by the Agent shall be
binding on the Banks, and the Agent shall be under no liability
whatsoever in respect thereof.
15.10 The Agent may resign (without reason) its appointment at any
time by giving a 30 days' prior written notice to the parties
hereto. The resignation shall only become effective
-21-
upon the appointment of a new agent. The Agent may appoint a new
agent among any reputable and experienced finance institution.
Upon the appointment of a new agent, such new agent shall assume
all rights and obligations from such time designated by the
Agent, and the Agent shall from such time be discharged from any
further obligations hereunder.
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 Stranden 21, 0021 Oslo
telefax no. 22 48 10 46
Attention: Credit Administration;
(b) if to the Borrower, at Harbitzalleen 0, 0000 Xxxx
telefax no. 22 52 91 50
Attention: Xxxxxx Xxxxxxxx;
(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.
-22-
The Borrower
XX XXXXX AS
By ......................................................................
Name in block letters ...................................................
Title ...................................................................
The Banks
p.p. DEN NORSKE BANK ASA
By ......................................................................
Name in block letters ...................................................
Title ...................................................................
p.p. GJENSIDIGE NOR SPAREBANK ASA
By ......................................................................
Name in block letters ...................................................
Title ...................................................................
The Agent
p.p. DEN NORSKE BANK ASA
By ......................................................................
Name in block letters ...................................................
Title ...................................................................
-23-
EXHIBIT 1
B A N K C O M M I T M E N T S
Den norske Bank ASA 83.35%
Stranden 21
0021 Oslo
Telefax: 22 48 10 46
Attn: Credit Administration
Gjensidige NOR Sparebank ASA 16.65%
Kirkegaten 18
0107 Oslo
Telefax: 22 31 86 43
Attn: Loan Administration
------
100%
-24-
EXHIBIT 2
F O R M O F
D R A W D O W N N O T I C E
From: AL Chemy AS
To: Den norske Bank ASA
Attention: Credit Administration
Date: ...........................................
Dear Sirs
We refer to a Loan Facility Agreement dated 29 October 2002 (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 ....
....................... 20...., we wish to draw down the amount of
USD....................................... 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, net 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 aforementioned 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
for and on behalf of
.................................................................
.................................................................
(authorised officer)
-25-
EXHIBIT 3
F O R M O F
R E N E W A L N O T I C E
From: AL Chemy AS
To: Den norske Bank ASA
Attention: Credit Administration
Date: .............................
Dear Sirs
We refer to the Loan Facility Agreement dated 29 October 2002 (the "Agreement")
and made inter alia between ourselves as Borrower and Den norske Bank ASA as
Agent. Terms defined in the Agreement shall have the same meaning in this
notice.
The Interest Period for the relevant Tranche commencing on (date of renewal)
shall, subject as provided in the Agreement, be of ( .......................)
months duration.
We confirm that at and as of the date hereof the representations set out in
Clause 9 of the Agreement are true and that no event which is or may become
(with the passage of time or the giving of notice or both) one of those events
specified in Clause 13 of the Agreement has occurred.
Oslo, .... ................................. 20....
for and on behalf of
.................................................................
.................................................................
(authorised officer)
