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EXHIBIT 2
THIS NOVATION AND AMENDMENT AGREEMENT IS MADE ON 28 DECEMBER 2000.
BETWEEN
(1) AS WANGS FABRIK of Xxxxxxxxxxxxx 0, 0000 Xxxx (the "ORIGINAL
BORROWER");
(2) AL CHEMY AS of Xxxxxxxxxxxxx 0, 0000 Xxxx (the "NEW BORROWER");
(3) Certain banks and financial institutions (the "BANKS"); and
(4) DEN NORSKE BANK ASA of Xxxxxxxx 00, 0000 Xxxx (the "AGENT")
WHEREAS
(A) By a loan facility agreement dated 29 December 1998 (the "Agreement")
between the Original Borrower, the Banks and the Agent, the Banks
agreed to make revolving advances available to the Original Borrower in
the aggregate amount of up to USD 73,000,000 upon the terms and
conditions set out therein;
(B) The New Borrower has been supplied with a copy of the Agreement;
(C) It has been agreed between the parties hereto that the Original
Borrower should transfer to the New Borrower all of its rights and
obligations under the Agreement on the terms and conditions contained
herein;
(D) It has been agreed between the New Borrower, the Banks and the Agent
that certain changes should be made to the Agreement.
NOW THEREFORE IT IS HEREBY
Upon receipt by the Agent of
(i) copies of any consent necessary from governmental or other authorities
for the execution and performance by the New Borrower of this novation
and amendment agreement and the Agreement;
(ii) a copy of the resolution of the Board of Directors of the New Borrower
approving the execution and performance by the New Borrower of this
novation and amendment agreement and the Agreement;
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(iii) company certificate ("firmaattest") of the New Borrower and a copy of
its articles of association ("vedtekter");
(iv) a confirmation from the Security Provider to the effect that the pledge
of its shares in Dynal AS remains in full force and effect irrespective
of the novation set out in this novation and amendment agreement; and
(v) an unconditional and irrevocable guarantee from AS Wangs Fabrik
together with a copy of the resolution of the Board of Directors
approving its execution and performance of the guarantee and copies of
its company certificate ("firmaattest") and articles of association
("vedtekter")
AGREED AS FOLLOWS:
1. DEFINITIONS
1.1 Words and phrases defined in the Agreement and used herein shall,
unless the context otherwise provides, have the same meaning herein and
in the recitals hereto.
2. NOVATION
2.1 With effect from ________________ 2000:
(a) the Agent and the Banks hereby releases the Original Borrower
from all the obligations to be performed and the liabilities
assumed by it in its capacity as borrower under the Agreement;
(b) the Original Borrower hereby releases the Agent and the Banks
from all obligations to be performed and the liabilities
assumed by them towards the Original Borrower in their
capacity as agent and lenders respectively under the
Agreement;
(c) the New Borrower hereby assumes liabilities and agrees to
perform obligations to the Agent and the Banks in their
capacity as agent and lenders respectively, identical to those
from which the Original Borrower is released pursuant to
paragraph (a) above.
3. AMENDMENTS
3.1 All references to the Original Borrower as the Borrower under the
Agreement shall be substituted by reference to the New Borrower.
3.2 The New Borrower, the Banks and the Agent have agreed to the following
changes to the Agreement:
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(a) In Clause 8.3 sub-clauses (b) and (c) shall be deleted and a
new sub-clause (b) shall be inserted which shall read:
"an unconditional and irrevocable guarantee from AS Wangs
Fabrik".
4. RESPONSIBILITY
4.1 The Agent makes no representation, warranty and assumes no
responsibility with respect to the due execution, validity, sufficiency
or enforceability of the Agreement or any document relating thereto or
for the performance or observance by the New Borrower or of any other
party of any of its obligations under the Agreement or any documents
relating thereto and all such conditions and warranties, express or
implied by law or otherwise, are hereby excluded.
4.2 Neither the Banks nor the Agent shall be under any obligation to make
any payment to the New Borrower.
5. BENEFIT OF TRANSFER
5.1 This novation and amendment agreement shall be binding and shall enure
to the benefit of each of the parties hereto and their respective
successors and assigns.
6. FEES AND EXPENSES
6.1 Expenses incurred in connection with the novation and amendment
agreement or any of the Security Documents shall be for the account of
the Borrower.
7. NOTICES
7.1 Any notice, request, demand or other communication to be given or made
hereunder shall be in writing (either by telefax or letter) addressed
to the party concerned at its address specified above and shall be
effective upon receipt by such party.
8. LAW
8.1 This novation and amendment agreement shall be governed by and
construed in accordance with the laws of Norway.
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AS WITNESS the hands of the duly authorised officers of the partes hereto the
day and year first above written.
The Original Borrower:
AS WANGS FABRIK
By: /s/ X.X. Xxxxxxxx
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The New Borrower:
AL CHEMY AS
By: /s/ X.X. Xxxxxxxx
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The Banks:
p.p. DEN NORSKE BANK ASA
By:
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The Agent:
p.p. DEN NORSKE BANK ASA
By:
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