11. CHANGES IN CIRCUMSTANCES
11.1 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;
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 11.1 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 11.1 shall, absent manifest error, be conclusive. The Borrower shall be entitled to prepay such Bank's portion of the Loan in accordance with Clause 9 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.
11.2 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 no later than 10 days after receipt by the Borrower of a written demand from such Bank through the Agent.
11.3 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.
11.4 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.
12. FEES AND EXPENSES
12.1 The Borrower shall pay to the Agent:
(a) for the account of the Agent, on the first Drawdown Date, or if earlier, the date falling 5 Banking Days after the date hereof, an arrangement fee of 1.5 % flat of the Commitment;
(b) for the account of the Banks, a commitment fee in USD 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 Term Date, of 40 % of the Margin calculated on the daily average undrawn amount of the Commitment, such fee to be payable quarterly in arrears commencing on the date hereof and finally on the last day of such period as aforesaid;
(c) on the first Drawdown Date or, if later, the date upon which an additional bank or financial institution participates in the Facility and on each anniversary thereof while any amount is outstanding hereunder and more than one bank or financial institution is participating in the Facility, an annual agency fee for the Agent of USD 2,500 payable in advance;
(d) upon demand, all expenses (including internal and external legal 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.
12.2 The obligations of the Borrower in Clause 12.1 (d) above shall survive the final Repayment Date.
13. PAYMENTS
13.1 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.
13.2 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 therefore, 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 2 % 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 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 unheeded 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 perio ds of such length (not exceeding three months) as it may designate. Interest charged under this Clause 13.2 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.
13.3 All payments to be made by the Borrower hereunder shall be made without set-off or counterclaim.
13.4 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.
13.5 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.
13.6 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 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 13.2 above.
13.7 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 in any case where market practice differs, in accordance with market practice.
14. EVENTS OF DEFAULT
14.1 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 a currency (or a combination of currencies) elected by the Majority Banks in their sole discretion 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 is continuing and the Agent, upon the instruction of the Majority Banks, gives notice to the Borrower:
(a) if the Borrower fails to pay any sum due hereunder on the due date unless such failure is caused by technical or administrative error in which case a remedy period of 5 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 such default continues unremedied for a period of 20 Banking Days after the Agent has given to the Borrower notice of such default; or
(c) if any representation or undertaking 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 in any material respect 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 and such default continues unremedied for a period of more than 5 Banking Days, provided that all such indebtedness or liability aggregates to more than USD 10,000,000 or the equivalent in other currencies; 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 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 Majority 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 (other than under or as a part of the Generic Drug Unit Transaction) or the same are seized or appropriated for any reason; or
(i) if any Security Document ceases to be in full force and effect unless remedied within 5 Banking Days; 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 the Borrower at any time ceases to be (indirectly) a wholly owned subsidiary of the Guarantor, without the prior written approval of the Agent on behalf of the Banks; or
(l) if a situation arises which, in the opinion of the Majority Banks, may prevent fulfilment by the Borrower of its obligations hereunder or by the Guarantor of its obligations under the Guarantee.
14.2 Clause 14.1 (d) - (h) shall also apply with respect to the Group and the Guarantor Group.
15. TRANSFER
15.1 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. Such transfer is subject to prior written consent of the Borrower, such consent not to be unreasonably withheld or delayed, unless the transfer is to another Bank or affiliate of a Bank in which case no such consent is required. The Borrower shall be deemed to have given such consent if no express refusal is received by the Agent within 5 Banking Days after receipt by the Borrower of such notice. In event of transfer references herein to such Bank shall be construed as references to its transferee or transferees to the extent necessary.
16. AGENCY
16.1 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.
16.2 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.
16.3 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.
16.4 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.
16.5 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 the Agent shall not be liable to any other party hereto for any consequence of any such reliance.
16.6 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 by any of them.
16.7 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 any claim it has against the Borrower towards any claim the Borrower has against the Agent or such Bank, irrespective of such claims being nominated in different currencies or if the claims have not yet fallen due. 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.
16.8 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.
16.9 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 Majority Banks or if specifically designated in a relevant term of this Agreement, all the Banks. Any such waiver, consent, variation, act or omission so authorised and effected by the Agent shall be binding on all the Banks and the Agent shall be under no liability whatsoever in respect thereof, except that the prior written agreement of all of the Banks shall be required to authorise (i) any change in any rate at which interest is payable under or in connection with this Agreement, (ii) any extension of the date for or alteration in the amount or currency of, any payment of principal, interest, commitment fee or other amount payable under or in connection with this Agreement, (iii) any increase in any Bank's obligations under Clause 2, (iv) any release of security interests provided hereunder , (v) an y variation of the definition of Majority Banks, or (vi) any variation of the terms of this Clause 16.9.
16.10 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 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.
17. NOTICES AND TIME
17.1 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 N-0021 Oslo, Norway
telefax no. +47 22 31 86 43
Attention: Loan Administration;
(b) if to the Borrower, at P.O. Box 1736, 2300 Copenhagen S, Denmark
Attention Financial Treasury
telefax no. + 47 22 52 91 50
with a copy to legal dept. a.p.i. division
telefax no. + 45 32 64 55 02
(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.
17.2 Communications sent by letter or telefax shall be effective upon receipt. Any communication by telefax from the Borrower to the Agent or vice versa shall be confirmed by letter if so requested by the Agent.
17.3 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.
18. GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance with Norwegian law.
18.2 The Borrower hereby irrevocably submits to the non-exclusive jurisdiction of the Norwegian courts, the venue to be elected by the Agent.
