<PAGE>
EXECUTION COPY
DATED 2 JUNE 2000
KONINKLIJKE NUMICO N.V.
AS PARENT
DEUTSCHE BANK AG
ING BANK N.V.
AND
SALOMON BROTHERS INTERNATIONAL LIMITED
AS ARRANGERS
ING BANK N.V.
AS AGENT
AND
OTHERS
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EURO 1,050,000,000
BRIDGE FACILITY AGREEMENT
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CONTENTS
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CLAUSE PAGE
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1. Definitions And Interpretation..................................................................1
2. The Facility...................................................................................12
3. Utilisation Of The Facility....................................................................12
4. Interest Periods For Advances..................................................................13
5. Payment And Calculation Of Interest On Advances................................................14
6. Market Disruption And Alternative Interest Rates...............................................14
7. Notification...................................................................................15
8. Repayment Of The Facility......................................................................16
9. Cancellation And Prepayment....................................................................16
10. Taxes..........................................................................................18
11. Tax Receipts...................................................................................19
12. Increased Costs................................................................................20
13. Illegality.....................................................................................21
14. Mitigation.....................................................................................21
15. Representations................................................................................22
16. Financial Information..........................................................................26
17. Covenants......................................................................................27
18. Events Of Default..............................................................................30
19. Guarantee And Indemnity........................................................................33
20. Fees...........................................................................................35
21. Costs And Expenses.............................................................................36
22. Default Interest And Break Costs...............................................................37
23. Parent's Indemnities...........................................................................38
24. Currency Of Account And Payment................................................................40
25. Payments.......................................................................................40
26. Set-Off........................................................................................42
27. Sharing........................................................................................42
28. The Agent, The Arrangers And The Banks.........................................................44
29. Assignments And Transfers......................................................................48
30. Calculations And Evidence Of Debt..............................................................50
31. Remedies And Waivers, Partial Invalidity.......................................................52
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32. Notices........................................................................................52
33. Counterparts...................................................................................54
34. Amendments.....................................................................................54
35. Governing Law..................................................................................54
36. Jurisdiction...................................................................................55
37. Borrowers' Agent...............................................................................55
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Schedule 1 THE ORIGINAL PARTIES.............................................................56
Part A The Original Banks...............................................................56
Part B The Borrowers....................................................................56
Part C The Guarantors...................................................................56
Schedule 2 FORM OF TRANSFER CERTIFICATE.....................................................57
Schedule 3 CONDITIONS PRECEDENT.............................................................60
Schedule 4 NOTICE OF DRAWDOWN...............................................................62
Schedule 5 EXISTING ENCUMBRANCES............................................................63
Schedule 6 MANDATORY COSTS..................................................................64
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<PAGE>
THIS AGREEMENT is made on 2 June 2000
BETWEEN
(1) KONINKLIJKE NUMICO N.V. (company no. 27090619) (the "PARENT");
(2) THE COMPANIES listed in Part B of Schedule 1 in their capacity as
borrowers hereunder (together with the Parent, the "BORROWERS" and
"BORROWER" means any one of them);
(3) THE COMPANIES listed in Part C of Schedule 1 in their capacity as
guarantors hereunder (together with the Parent, the "GUARANTORS" and
"GUARANTOR" means any one of them);
(4) DEUTSCHE BANK AG, ING BANK N.V. AND SALOMON BROTHERS INTERNATIONAL
LIMITED as arrangers of the Facility (the "ARRANGERS");
(5) ING BANK N.V. as agent for the Banks (the "FACILITY AGENT"); and
(6) THE BANKS named in Part A of Schedule 1 as original banks (the
"ORIGINAL BANKS").
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACQUISITION" means the proposed acquisition by the Parent of up to all
of the outstanding shares of common stock of Rexall Sundown by means of
the Offer and the Merger.
"ADVANCE" means an advance (as from time to time consolidated, divided
or reduced by repayment) made or to be made by the Banks under the
Facility.
"AUTHORISED SIGNATORY" means, in relation to an Obligor, any person who
is duly authorised (in such manner as may be reasonably acceptable to
the Facility Agent) and in respect of whom the Facility Agent has
received a certificate signed by a director or another Authorised
Signatory of such Obligor setting out the name and signature of such
person and confirming such person's authority to act.
"AVAILABILITY PERIOD" means the period from and including the date
hereof to and including the earlier of (a) 10 days from the Closing
Date or such later date as may be agreed for the purposes of the Offer
and (b) the first Business Day on which the Available Commitment of
each of the Banks is zero.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and
save as otherwise provided herein, its Commitment at such time LESS the
aggregate of its share of the amount of the Advances which are then
outstanding.
<PAGE>
"AVAILABLE FACILITY" means, at any time, the aggregate amount of the
Available Commitment adjusted, in the case of any proposed drawdown, so
as to take into account any reduction in the Commitment of a Bank on or
before the proposed drawdown date pursuant to the terms hereof.
"BANK" means any financial institution:
(a) named in Part A of Schedule 1 (THE ORIGINAL BANKS); or
(b) which has become a party hereto in accordance with Clause 29.3
(ASSIGNMENTS AND TRANSFERS BY BANKS), Clause 29.4 (ASSIGNMENTS
BY BANKS) or Clause 29.5 (TRANSFERS BY BANKS),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"BORROWERS' AGENT" means the Parent as agent for the Borrowers in
accordance with Clause 37 (BORROWERS' AGENT).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) which is
not a public holiday and on which banks are open for general business
in London, New York and Amsterdam and any TARGET Day.
"CLOSING DATE" means the date on which this Agreement is executed by
all of the original parties hereto.
"COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name in Part A
of Schedule 1 (THE ORIGINAL BANKS).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in
the standard form from time to time of the LMA or in such other form as
may be agreed between the Parent and the Facility Agent.
"CONSOLIDATED SUBSIDIARY" means a subsidiary which is consolidated
for accounting purposes with the Parent in accordance with Generally
Accepted Accounting Principles.
"CONVERTIBLE BONDS" means the Existing Convertible Bonds and the New
Convertible Bonds.
"DISPUTE" means any dispute referred to in Clause 36 (JURISDICTION).
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"EMU LEGISLATION" means legislative measures of the European Union for
the introduction of, changeover to or operation of the euro in one or
more member states, being in part legislative measures to implement
EMU.
"ENCUMBRANCE" means a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person or any agreement or
arrangement having a similar effect.
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"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by
any person pursuant to any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in
which any Obligor or other member of the Group conducts business which
relates to the pollution or protection of the environment or harm to or
the protection of human health or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval
and other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of
the business of any Obligor or other member of the Group conducted on
or from the properties owned or used by the relevant Obligor or other
member of the Group.
"EQUITY PACKAGE" means the proposed issue of new ordinary shares in the
Parent and the New Convertible Bonds which will be designed to raise
(before commissions and expenses) at least euro 1,050,000,000 (at least
euro 400,000,000 of which in aggregate is designed to be raised by the
issue of ordinary shares in the Parent).
"EURIBOR" means, in relation to any amount to be advanced to, or owing
by, an Obligor under the Finance Documents in euro on which interest
for a given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which
displays the rate of the Banking Federation of the European
Union for the euro (being currently page 248) for such period
as of 11.00 a.m. (Brussels time) on the Quotation Date for
such period or, if such page or such service shall cease to be
available, such other page or such other service for the
purpose of displaying an average rate of the Banking
Federation of the European Union as the Facility Agent, after
consultation with the Banks and the Borrowers' Agent, shall
select; or
(b) if no quotation for the euro for the relevant period is
displayed and the Facility Agent has not selected an
alternative service on which a quotation is displayed, the
arithmetic mean (rounded upwards to four decimal places) of
the rates (as notified to the Facility Agent) at which each of
the Reference Banks was offering to prime banks in the
European interbank market deposits in the euro of an
equivalent amount and for such period as of 11.00 a.m.
(Brussels time) on the Quotation Date.
"EVENT OF DEFAULT" means any circumstance described as such in Clause
18 (EVENTS OF DEFAULT).
"EXISTING CONVERTIBLE BONDS" means the euro denominated convertible
subordinated bonds due 2004 convertible into depositary receipts of
shares and issued by the Parent in an aggregate principal amount of
euro 690,000,000.
"FACILITY" means the euro bridge facility granted to the Borrowers in
this Agreement.
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"FACILITY OFFICE" means, in relation to the Facility Agent, the office
identified with its signature below or such other office as it may
select by notice and, in relation to any Bank, the office notified by
it to the Facility Agent in writing prior to the date hereof (or, in
the case of a Transferee, at the end of the Transfer Certificate to
which it is a party as Transferee) or such other office as it may from
time to time select by notice to the Facility Agent.
"FINANCE DOCUMENTS" means this Agreement and any fee letter delivered
pursuant to Clause 20 (COMMITMENT COMMISSION AND FEES) and any other
document designated as such by the Facility Agent and the Parent.
"FINANCE PARTIES" means the Facility Agent, the Arrangers and the
Banks.
"FINANCIAL INDEBTEDNESS" of any person means:
(a) all indebtedness of that person for borrowed money including
debit balances at banks and including, without limitation, any
subordinated convertible bonds;
(b) (without double counting) all liabilities of that person
(actual or contingent) under any guarantee, bond, security,
indemnity or other agreement designed to assure any creditor
against loss in respect of any Financial Indebtedness of any
other person;
(c) all indebtedness under any acceptance credit opened on behalf
of that person;
(d) all indebtedness of that person under any debenture, note,
bond or commercial paper or similar instrument;
(e) all indebtedness of that person in respect of any interest
rate or currency swap or forward currency sale or purchase or
contract for differences or other form of interest or currency
hedging transaction or option as to any of these (including
without limitation caps, collars and floors);
(f) all indebtedness of that person under any finance lease;
(g) any other liability (actual or contingent) undertaken by that
person in connection with amounts raised under any other
transaction having the commercial effect of a borrowing or
raising of money,
(but shall not include any indebtedness due from one Consolidated
Subsidiary to another Consolidated Subsidiary, PROVIDED THAT at the
time such indebtedness is incurred there is no outstanding Event of
Default).
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means:
(a) in relation to the Parent, accounting principles generally
accepted and adopted in The Netherlands; and
(b) in relation to any other Obligor, accounting principles
generally accepted and adopted in The Netherlands or such
Obligor's jurisdiction of incorporation.
<PAGE>
"GROUP" means the Parent and its subsidiaries for the time being.
"INSTRUCTING GROUP" means:
(a) before any Advances have been made, a Bank or Banks whose
Commitments amount in aggregate to more than 66 2/3% of the
Total Commitments; and
(b) thereafter, a Bank or Banks to whom in aggregate more than
66 2/3% of the amount of the Loan is (or, immediately prior to
its repayment, was then) owed.
"INTELLECTUAL PROPERTY" means all patents, trade marks, rights in
design and copyrights (whether registered or unregistered and including
applications for registration), database rights and all rights or forms
of protection of a similar nature or having equivalent effect to any of
these.
"INTEREST PERIOD" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 4.1 (INTEREST
PERIODS); and
(b) in relation to an Unpaid Sum, any of those periods mentioned
in Clause 22.1 (DEFAULT INTEREST PERIODS).
"LMA" means the Loan Market Association.
"LOAN" means, at any time, the aggregate principal amount of
outstanding Advances.
"MANDATORY COST RATE" means the rate determined in accordance with
Schedule 6 (MANDATORY COSTS).
"MARGIN" means 0.75% per annum.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
ability of an Obligor to perform, or comply with, its obligations under
the Finance Documents.
"MATERIAL SUBSIDIARY" means, at any time, either an Obligor (other than
the Parent) or a subsidiary of the Parent which has:
(a) gross assets representing 5% or more of the consolidated gross
assets of the Group; or
(b) net sales representing 5% or more of the consolidated net
sales of the Group,
in each case calculated on a consolidated basis. Compliance with the
conditions set out in paragraphs (a) and (b) shall be determined by
reference to the most recent audited financial statements of such
subsidiary and the latest audited consolidated financial statements of
the Group PROVIDED THAT:
(i) if a subsidiary has been acquired since the date as at which
the latest audited consolidated financial statements of the
Group were prepared, such financial
<PAGE>
statements shall be adjusted in order to take into account the
acquisition of such subsidiary; and
(ii) if any intra-group transfer or re-organisation takes place,
the audited financial statements of the Group and of all
relevant subsidiaries shall be adjusted in order to take into
account such intra-group transfer or reorganisation.
A report by the auditors of the Parent that a subsidiary is or is not a
Material Subsidiary shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.
"MERGER" means the proposed merger, pursuant to the Merger Agreement,
of Nutricia and Rexall Sundown.
"MERGER AGREEMENT" means the agreement and plan of merger dated 30
April 2000, as amended on 25 May 2000, between the Parent, Nutricia and
Rexall Sundown.
"NEW CONVERTIBLE BONDS" means euro denominated convertible subordinated
bonds due at least three months after the Revolving Termination Date
(as such term is defined in the Senior Loan Agreement) convertible into
depositary receipts of shares and issued by the Parent after the date
of this Agreement in an aggregate principal amount of approximately
euro 700,000,000.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out
in Schedule 4 (NOTICE OF DRAWDOWN).
"NUTRICIA" means Nutricia Investment Corp., a Florida corporation which
is an indirect wholly-owned subsidiary of the Parent.
"OBLIGORS" means the Borrowers, the Guarantors and the Parent and
"OBLIGOR" means any one of them.
"OFFER" means the tender offer by Nutricia for up to all of the
outstanding shares of common stock of Rexall Sundown.
"OFFER DOCUMENTS" means the "Offer Documents" as defined in the Merger
Agreement and all documentation filed by or on behalf of the Parent
and/or Nutricia and with the Securities and Exchange Commission in
connection with the Offer, (in each case where either the Parent or
Nutricia is a party to such document or has been responsible for filing
such document, and provided such document is material to the Finance
Parties (as determined by the Facility Agent) in connection with the
Finance Documents) and the Merger Agreement.
"PARTICIPATING MEMBER STATE" means any member state which has adopted
the euro as its lawful currency at the relevant time.
"PERMITTED ENCUMBRANCE" means:
(a) any lien arising by operation of law and in the ordinary
course of trading;
<PAGE>
(b) any Encumbrance specified in Schedule 5 (EXISTING
ENCUMBRANCES), if the principal amount thereby secured is not
increased;
(c) an Encumbrance created or outstanding with the prior consent
of an Instructing Group;
(d) any Encumbrance over or affecting any asset existing before
that asset is acquired by a member of the Group. This
sub-paragraph only applies if:
(i) the acquisition is at fair market value and on an
arms' length basis; and
(ii) the amount secured does not, and the assets affected
do not, increase following the acquisition.
(e) any Encumbrance over or affecting any asset of any company
which becomes a member of the Group after the date hereof,
where such Encumbrance is created prior to the date on which
such company becomes a member of the Group, if:
(i) such Encumbrance was not created in contemplation of
the acquisition of such company; and
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the
acquisition of such company.
(f) any Encumbrance arising as a result of netting and set-off
arrangements regarding members of the Group in place at the
date hereof and operated in the ordinary course of the Group's
banking arrangements;
(g) any Encumbrance created on any assets acquired by a member of
the Group after the date hereof for the sole purpose of
financing or refinancing that acquisition and securing a
principal, capital or nominal amount not exceeding the cost of
that acquisition;
(h) any title transfer or retention of title arrangement entered
into by any member of the Group in the normal course of its
trading activities on the counterparty's standard or usual
terms;
(i) any Encumbrance created or subsisting in the ordinary course
of business (in connection with the provision of documentary
letters of credit) over documents of title, insurance policies
or sale contracts in relation to commercial goods to secure
the purchase price of such goods; and
(j) Encumbrances not otherwise permitted by paragraphs (a) to (i)
inclusive above securing indebtedness in an aggregate
principal amount not exceeding euro 40,000,000 (or its
equivalent).
"POTENTIAL EVENT OF DEFAULT" means an event or state of affairs which
is mentioned in Clause 18 (EVENTS OF DEFAULT) but which has not become
an Event of Default because a
<PAGE>
period has not elapsed, a notice has not been given or a determination
has not been made in each case as specified in Clause 18 (EVENTS OF
DEFAULT).
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advances are outstanding, the proportion borne by its
Commitment to the Total Commitments (or, if the Total
Commitments are then zero, by its Commitment to the Total
Commitments immediately prior to their reduction to zero); or
(b) whilst at least one Advance is outstanding, the proportion borne
by its share of the amount of the Loan to the amount of the
Loan.
"PRESS RELEASE" means the first public announcement, dated 1 May 2000,
by the Parent in connection with the Acquisition.
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined under the Finance Documents, the day on which
quotations would ordinarily be given by prime banks in the European
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 period,
PROVIDED that, if, for any such period, quotations would ordinarily be
given on more than one date, the Quotation Date for that period shall be
the last of those dates.
"REFERENCE BANKS" means the principal Amsterdam offices of ING Bank
N.V. and Deutsche Bank AG and the principal London office of Citibank,
N.A. or such banks as may be appointed as such by the Facility Agent
after consultation with the Parent.
"REPAYMENT DATE" means 31 July 2000.
"REPEATED REPRESENTATIONS" means each of the representations set out in
Clause 15.1 (LEGAL STATUS) to Clause 15.6 (BORROWING LIMIT), Clause
15.19 (LICENCES AND CONSENTS) and Clause 15.21 (OWNERSHIP OF BORROWERS).
"REXALL SUNDOWN" means Rexall Sundown, Inc., a Florida corporation.
"SENIOR LOAN" means the loan in an amount of euro 1,000,000,000 and
US$1,450,000,000 made available by certain financial institutions to the
Borrowers pursuant to a multicurrency credit agreement dated on or about
the date hereof (the "SENIOR LOAN AGREEMENT").
"SUBSEQUENT PARTICIPANT" means a member state that adopts the euro as
its lawful currency after 1 January 1999.
"TARGET DAY" means a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer Systems is open for settlement of
payment in euros.
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
<PAGE>
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 (FORM OF TRANSFER CERTIFICATE) signed by a Bank and a
Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights, benefits and obligations
under the Finance Documents upon and subject to the terms and
conditions set out in Clause 29.3 (ASSIGNMENTS AND TRANSFERS
BY Banks); and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the
Facility Agent as contemplated in Clause 29.5 (TRANSFERS BY
BANKS).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer
Certificate.
"TRANSFEREE" means a person to which a Bank seeks to transfer by
novation all or part of such Bank's rights, benefits and obligations
under the Finance Documents.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the Single European Act 1986 and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 22.1 (DEFAULT INTEREST PERIODS).
1.2 INTERPRETATION
Any reference in this Agreement to:
the "FACILITY AGENT" or any "BANK" shall be construed so as to include
its and any subsequent successors and permitted transferees in
accordance with their respective interests;
"CONTINUING", in relation to an Event of Default, shall be construed as
a reference to an Event of Default which has not been waived in
accordance with the terms hereof and, in relation to a Potential Event
of Default, one which has not been remedied within the relevant grace
period or waived in accordance with the terms hereof;
the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of
an amount denominated in another currency (the "SECOND CURRENCY") is a
reference to the amount of the first currency which could be purchased
with the amount of the second currency at the spot rate of exchange
quoted by the Facility Agent at or about 11.00 a.m. on such date for the
purchase of the first currency with the second currency;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
<PAGE>
"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
a "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory
body or court;
a "MEMBER STATE" shall be construed as a reference to a member state of
the European Union;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business
Day, such period shall end on the immediately succeeding
Business Day to occur in that next succeeding calendar month
or, if none, it shall end on the immediately preceding
Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month,
(and references to "MONTHS" shall be construed accordingly);
a "PERSON" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be,
the corresponding derivative form thereof);
a "SUBSIDIARY" means, in respect of a company or corporation, any
company or corporation in which the first company or corporation:
(a) holds, directly or indirectly a majority of the voting rights;
(b) is a member and has the right to appoint or remove a majority
of its board of directors;
(c) is a member and controls, pursuant to an agreement with other
shareholders or members, a majority of the voting rights in
it;
or which is a subsidiary of another company or corporation which is
itself a subsidiary of the first company or corporation.
<PAGE>
a "SUCCESSOR" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of
its jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including any penalty or interest
payable in connection with any failure to pay or any delay in paying any
of the same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time;
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be
construed as a reference to any company or corporation which has no
other members except that other company or corporation and that other
company's or corporation's wholly-owned subsidiaries or persons acting
on behalf of that other company or corporation or its wholly-owned
subsidiaries; and
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which such
company or corporation carries on business including the seeking of
liquidation, winding-up, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"EURO" and "EUR" means the single currency unit of the European Union as
constituted by the Treaty on European Union as referred to in EMU
Legislation and "EURO UNIT" means the currency unit of the euro as
defined in EMU Legislation.
1.4 AGREEMENTS AND STATUTES
Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have
been, or may from time to time be, amended, varied, novated or
supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time
to time be, amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a
contrary indication appears, be a reference to London time.
<PAGE>
2. THE FACILITY
2.1 GRANT OF THE FACILITY
The Banks grant to the Borrowers, upon the terms and subject to the
conditions hereof a euro bridge facility in an aggregate amount of euro
1,050,000,000.
2.2 PURPOSE AND APPLICATION
The Facility is intended to serve as a bridge loan for the Acquisition
until the completion of the Equity Package and, accordingly, each
Borrower shall apply all amounts raised by it hereunder in or towards
satisfaction of these purposes and none of the Finance Parties shall be
obliged to concern themselves with such application.
2.3 CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, none of the Borrowers may deliver
any Notice of Drawdown unless the Facility Agent has confirmed to the
Parent and the Original Banks that it has received all of the documents
and other evidence listed in Schedule 3 (CONDITIONS PRECEDENT) and that
each is, in form and substance, satisfactory to the Facility Agent.
2.4 BANKS' OBLIGATIONS SEVERAL
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of an
Obligor towards any other party hereto nor shall any other party be
liable for the failure by such Bank to perform its obligations
hereunder.
2.5 BANKS' RIGHTS SEVERAL
The rights of each Bank are several and any debt arising hereunder at
any time from an Obligor to any of the other parties hereto shall be a
separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for
any party hereto to be joined as an additional party in any proceedings
for this purpose).
3. UTILISATION OF THE FACILITY
3.1 DRAWDOWN CONDITIONS FOR ADVANCES
An Advance will be made by the Banks to a Borrower if:
3.1.1 not later than 10.00 a.m. (Amsterdam time) on the fourth
Business Day (or second Business Day with regard to the
initial Advance) before the proposed date for the making of
such Advance, the Facility Agent has received a completed
Notice of Drawdown from such Borrower;
3.1.2 the proposed date for the making of such Advance is a
Business Day within the Availability Period;
3.1.3 the proposed amount of such Advance is (a) (if less than the
Available Facility) an amount not less than euro 100,000,000
and an integral multiple of euro 50,000,000 or (b) equal to
the amount of the Available Facility;
<PAGE>
3.1.4 there would not, immediately after the making of such Advance,
be more than 2 Advances outstanding; and
3.1.5 on and as of the proposed date for the making of such Advance
(a) no Event of Default or Potential Event of Default is
continuing and (b) the Repeated Representations are true in
all material respects.
3.2 EACH BANK'S PARTICIPATION IN ADVANCES
Each Bank will participate through its Facility Office in each Advance
made pursuant to Clause 3.1 (DRAWDOWN CONDITIONS FOR ADVANCES) in the
proportion borne by its Available Commitment to the Available Facility
immediately prior to the making of that Advance.
3.3 REDUCTION OF AVAILABLE COMMITMENT
If a Bank's Available Commitment is reduced in accordance with the terms
hereof after the Facility Agent has received the Notice of Drawdown for
an Advance and such reduction was not taken into account in the
Available Facility, then the amount of that Advance shall be reduced
accordingly.
4. INTEREST PERIODS FOR ADVANCES
4.1 INTEREST PERIODS
The period for which an Advance is outstanding shall be divided into
successive periods each of which (other than the first, which shall
begin on the day such Advance is made) shall start on the last day of
the preceding such period.
4.2 DURATION
The duration of each Interest Period shall, save as otherwise provided
herein, be one or two weeks or such other period not being less than 3
days (or such other periods with the prior consent of the Facility
Agent), in each case as the Borrower to which such Advance is made may
by not less than four Business Days' prior notice to the Facility Agent
select (or such other period as the Banks may agree), PROVIDED THAT:
4.2.1 if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to sub-clause 4.2.2, be one week; and
4.2.2 no Interest Period shall extend beyond the Repayment Date.
4.3 CONSOLIDATION OF ADVANCES
If two or more Interest Periods relating to Advances made to the same
Borrower and denominated in the same currency end at the same time, then
unless that Borrower (or the Borrowers' Agent on its behalf) specifies
to the contrary, on the last day of those Interest Periods, the Advances
to which they relate shall be consolidated into and treated as a single
Advance.
4.4 DIVISION OF ADVANCES
The Borrower to which such Advance is made may, by not less than four
Business Days' prior notice to the Facility Agent, direct that any
Advance shall, at the beginning
<PAGE>
of any Interest Period relating thereto, be divided into (and
thereafter, save as otherwise provided herein, treated in all respects
as) two Advances having such amount as shall be specified by such
Borrower in such notice, PROVIDED THAT such Borrower shall not be
entitled to make such a direction if:
4.4.1 as a result of so doing, there would be more than two
outstanding Advances; or
4.4.2 any Advance thereby coming into existence would have an amount
of less than euro 100,000,000.
5. PAYMENT AND CALCULATION OF INTEREST ON ADVANCES
5.1 PAYMENT OF INTEREST
On the last day of each Interest Period the Borrower to which such
Advance has been made shall pay accrued interest on the Advance to which
such Interest Period relates.
5.2 CALCULATION OF INTEREST
The rate of interest applicable to an Advance from time to time during
an Interest Period relating thereto shall be the rate per annum which is
the sum of:
5.2.1 the Margin at the relevant time;
5.2.2 the Mandatory Cost Rate; and
5.2.3 EURIBOR.
5.3 Interest is to be computed on a 360 day basis and the number of actual
days elapsed.
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
6.1 MARKET DISRUPTION
If, in relation to any Advance:
6.1.1 EURIBOR is to be determined by reference to Reference Banks
and at or about the time at which the rate is to be determined
on the Quotation Date for the relevant Interest Period none or
only one of the Reference Banks supplies a rate for the
purpose of determining EURIBOR for the relevant Interest
Period; or
6.1.2 before the close of business in London on the Quotation Date
for such Advance the Facility Agent has been notified by a
Bank or each of a group of Banks to whom in aggregate 50% or
more of such Advance is owed (or, in the case of an undrawn
Advance, if made, would be owed) that EURIBOR does not
accurately reflect the cost of funding its participation in
such Advance,
then, the Facility Agent shall notify the Parent, the relevant Borrower
and the Banks of such event and, notwithstanding anything to the
contrary in this Agreement, Clause 6.2 (SUBSTITUTE INTEREST PERIOD AND
INTEREST RATE) shall apply to such Advance. If sub-clause 6.1.1 or 6.1.2
applies to a proposed Advance, the relevant Borrower may elect
<PAGE>
to have the Advance made on the basis of Clause 6.2 (SUBSTITUTE INTEREST
PERIOD AND INTEREST RATE) or, if the relevant Borrower does not so elect
by notice to the Facility Agent within 1 hour of receipt of the notice
from the Facility Agent pursuant to this Clause 6.1 such Advance shall
not be made.
6.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE
If sub-clause 6.1.1 of Clause 6.1 (MARKET DISRUPTION) applies to an
Advance, the duration of the relevant Interest Period shall be one week
or, if less, such that it shall end on the Repayment Date. If either
sub-clause 6.1.1 or 6.1.2 of Clause 6.1 (MARKET DISRUPTION) applies to
an Advance the rate of interest applicable to such Advance during the
relevant Interest Period shall (subject to any agreement reached
pursuant to Clause 6.3 (ALTERNATIVE RATE)) be the rate per annum which
is the sum of:
6.2.1 the Margin at such time;
6.2.2 the Mandatory Cost Rate in respect thereof at such time; and
6.2.3 the rate per annum determined by the Facility Agent to be the
arithmetic mean (rounded upwards to four decimal places) of
the rates notified by each Bank to the Facility Agent before
the last day of such Interest Period to be those which express
as a percentage rate per annum the cost to each Bank of
funding from whatever sources it may reasonably select its
portion of such Advance during such Interest Period.
6.3 ALTERNATIVE RATE
If either of those events mentioned in sub-clauses 6.1.1 and 6.1.2 of
Clause 6.1 (MARKET DISRUPTION) occurs in relation to an Advance, then if
the Facility Agent or the Parent so requires, the Facility Agent and the
Parent shall enter into negotiations with a view to agreeing a
substitute basis (i) for determining the rates of interest from time to
time applicable to the Advances and/or (ii) upon which the Advances may
be maintained thereafter and any such substitute basis that is agreed
shall take effect in accordance with its terms and be binding on each
party hereto, PROVIDED THAT the Facility Agent may not agree any such
substitute basis without the prior consent of each Bank.
7. NOTIFICATION
7.1 ADVANCES
Not less than three Business Days before the first day of an Interest
Period, the Facility Agent shall notify each Bank of the name of the
Borrower, the proposed amount of the relevant Advance, the proposed
length of the relevant Interest Period and the aggregate principal
amount of the relevant Advance allocated to such Bank pursuant to Clause
3.2 (EACH BANK'S PARTICIPATION IN ADVANCES).
7.2 INTEREST RATE DETERMINATION
The Facility Agent shall promptly notify the relevant Borrower and the
Banks of each determination of EURIBOR and the Mandatory Cost Rate.
<PAGE>
7.3 CHANGES TO ADVANCES OR INTEREST RATES
The Facility Agent shall promptly notify the relevant Borrower and the
Banks of any change to (a) the proposed length of an Interest Period or
(b) any interest rate occasioned by the operation of Clause 6 (MARKET
DISRUPTION AND ALTERNATIVE INTEREST RATES).
8. REPAYMENT OF THE FACILITY
8.1 REPAYMENT OF THE FACILITY
Each Borrower shall repay its share of the Loan in full on the
Repayment Date.
9. CANCELLATION AND PREPAYMENT
9.1 CANCELLATION OF THE FACILITY
The Parent may, by giving to the Facility Agent not less than five
Business Days' prior notice to that effect, cancel the whole or any part
(being an amount not less than euro 100,000,000 and an integral multiple
of euro 50,000,000) of the Available Facility. Any such cancellation
shall reduce the Available Commitments and Commitments of the Banks
rateably. On the last day of the Availability Period each Bank's
Available Commitment shall be automatically cancelled.
9.2 PREPAYMENT OF THE LOAN
The Borrower to which an Advance has been made may, if it has given to
the Facility Agent not less than five Business Days' prior notice to
that effect, but subject to Clause 22.4 (BREAK COSTS), prepay the whole
of any Advance or any part of any Advance selected by the Borrower
(being an amount such that the amount of such Advance will be reduced by
an amount not less than euro 100,000,000 and an integral multiple of
euro 50,000,000) on the last day of any Interest Period relating to that
Advance which ends after the last day of the Availability Period.
9.3 NOTICE OF CANCELLATION OR PREPAYMENT
Any notice of cancellation or prepayment given by a Borrower pursuant to
this Clause 9 shall be irrevocable, shall specify the date upon which
such cancellation or prepayment is to be made and the amount of such
cancellation or prepayment and, in the case of a notice of prepayment,
shall oblige the relevant Borrower to make such prepayment on such date.
9.4 REPAYMENT OF A BANK'S SHARE OF THE LOAN
If:
9.4.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 10.1 (TAX GROSS-UP); or
9.4.2 any Bank claims indemnification from the Parent under Clause
10.2 (TAX INDEMNITY) or Clause 12.1 (INCREASED COSTS),
the Parent may, whilst such circumstance continues, give the Facility
Agent at least ten Business Days' notice (which notice shall be
irrevocable) of its intention to procure the repayment of such Bank's
share of the Loan and at any time after the expiry of such
<PAGE>
notice but no later than the last day of each Interest Period current at
such expiry, each Borrower to which an Advance has been made shall repay
such Bank's portion of the Advance to which such Interest Period relates
together with accrued interest and any other amounts outstanding under
this Agreement.
9.5 NO FURTHER ADVANCES
A Bank for whose account a repayment is to be made under Clause 9.4
(REPAYMENT OF A BANK'S SHARE OF THE LOAN) shall not be obliged to
participate in the making of Advances on or after the date upon which
the Facility Agent receives the Parent's notice of its intention to
procure the repayment of such Bank's share of the Loan, and such Bank's
Available Commitment shall be reduced to zero.
9.6 NO OTHER REPAYMENTS
The Borrowers shall not repay all or any part of the Loan except at the
times and in the manner expressly provided for in this Agreement.
9.7 NO REBORROWING OF THE FACILITY
None of the Borrowers shall be entitled to reborrow any amount of the
Facility which is repaid.
9.8 MANDATORY PREPAYMENT ON MERGER OR CHANGE OF CONTROL
Other than in the case of the Merger, if the Parent merges with any
other person, or one or more persons, acting either individually or in
concert, obtain control of it:
9.8.1 the Parent shall promptly notify the Facility Agent upon
becoming aware of that event; and
9.8.2 upon receipt of such notice referred to in sub-clause 9.8.1,
the Facility Agent shall consult with the Parent and the
Banks; and
9.8.3 if, at the end of a period of 5 days following the
commencement of such consultation, an Instructing Group so
requires, the Facility Agent shall, by not less than 14 days
notice to the Parent, cancel the Facility and declare the
outstanding Loan, together with accrued interest, and all
other amounts accrued under the Finance Documents immediately
due and payable, whereupon the Facility will be cancelled and
all such outstanding amounts will become immediately due and
payable; and
9.8.4 for the purposes of this Clause 9.8 "control" means, directly
or indirectly:
(a) having a majority of the voting rights; or
(b) having the right to appoint or remove a majority of its
board of directors; or
(c) controlling, pursuant to an agreement with other
shareholders or members or otherwise, a majority of the
voting rights in it.
<PAGE>
9.9 MANDATORY PREPAYMENT FROM PROCEEDS OF EQUITY PACKAGE
9.9.1 From the date of this Agreement and while any Advance is
outstanding the Parent shall apply (or shall procure that
there are applied) not later than 3 Business Days following
the date of completion of the Equity Package, the Net Proceeds
of the Equity Package in prepayment of each Advance.
9.9.2 Any prepayment under sub-clause 9.9.1 will be made at any time
subject to the provisions of Clause 22.4 (BREAK COSTS).
9.9.3 For the purpose of this Clause:
"NET PROCEEDS" means the cash proceeds of the Equity Package
received by any member of the Group after the date of this
Agreement less directly related expenses, commissions, fees
and taxes in respect of the Equity Package.
10. TAXES
10.1 TAX GROSS-UP
All payments to be made by an Obligor to any Finance Party under the
Finance Documents shall be made free and clear of and without deduction
for or on account of tax unless such Obligor is required to make such a
payment subject to the deduction or withholding of tax, in which case
the sum payable by such Obligor (in respect of which such deduction or
withholding is required to be made) shall be increased to the extent
necessary to ensure that such Finance Party receives a sum net of any
deduction or withholding equal to the sum which it would have received
had no such deduction or withholding been made or required to be made.
10.2 TAX INDEMNITY
Without prejudice to Clause 10.1 (TAX GROSS-UP), if any Finance Party is
required to make any payment of or on account of tax on or in relation
to any sum received or receivable under the Finance Documents (including
any sum deemed for purposes of tax to be received or receivable by such
Finance Party whether or not actually received or receivable) or if any
liability in respect of any such payment is asserted, imposed, levied or
assessed against any Finance Party, the Parent shall, upon demand of the
Facility Agent, promptly indemnify the Finance Party which suffers a
loss or liability as a result against such payment or liability,
together with any interest, penalties, costs and expenses payable or
incurred in connection therewith, PROVIDED THAT this Clause 10.2 shall
not apply to:
10.2.1 any tax imposed on and calculated by reference to the net
income actually received or receivable by such Finance Party
(but, for the avoidance of doubt, not including any sum deemed
for purposes of tax to be received or receivable by such
Finance Party but not actually receivable) by the jurisdiction
in which such Finance Party is incorporated or, if different,
the jurisdiction in which that Finance Party is treated as
resident for tax purposes; or
10.2.2 any tax imposed on and calculated by reference to the net
income of the Facility Office of such Finance Party actually
received or receivable by such
<PAGE>
Finance Party (but, for the avoidance of doubt, not including
any sum deemed for purposes of tax to be received or
receivable by such Finance Party but not actually receivable)
by the jurisdiction in which its Facility Office is located.
10.3 CLAIMS BY BANKS
A Bank intending to make a claim pursuant to Clause 10.2 (TAX INDEMNITY)
shall promptly notify the Facility Agent of the event giving rise to the
claim, whereupon the Facility Agent shall notify the Parent thereof.
11. TAX RECEIPTS
11.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it under the Finance Documents (or
if thereafter there is any change in the rates at which or the manner in
which such deductions or withholdings are calculated), such Obligor
shall promptly notify the Facility Agent.
11.2 EVIDENCE OF PAYMENT OF TAX
If an Obligor makes any payment under the Finance Documents in respect
of which it is required to make any deduction or withholding, it shall
pay the full amount required to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment
under applicable law and shall deliver to the Facility Agent for each
Bank, within thirty days after it has made such payment to the
applicable authority, an original receipt (or a certified copy thereof)
issued by such authority evidencing the payment to such authority of all
amounts so required to be deducted or withheld in respect of that Bank's
share of such payment.
11.3 TAX CREDIT PAYMENT
If an additional payment is made under Clause 10 (TAXES) by an Obligor
for the benefit of any Finance Party and such Finance Party, in its sole
discretion, determines that it has obtained (and has derived full use
and benefit from) a credit against, a relief or remission for, or
repayment of, any tax, then, if and to the extent that such Finance
Party, in its sole opinion, determines that:
11.3.1 such credit, relief, remission or repayment is in respect of
or calculated with reference to the additional payment made
pursuant to Clause 10 (TAXES); and
11.3.2 its tax affairs for its tax year in respect of which such
credit, relief, remission or repayment was obtained have been
finally settled,
such Finance Party shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to such Obligor such amount as such Finance
Party shall, in its sole opinion, determine to be the amount which will
leave such Finance Party (after such payment) in no worse after-tax
position than it would have been in had the additional payment in
question not been required to be made by such Obligor.
<PAGE>
11.4 TAX AND OTHER AFFAIRS
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner
it thinks fit, oblige any Finance Party to claim any credit, relief,
remission or repayment in respect of any payment under Clause 10 (TAXES)
in priority to any other credit, relief, remission or repayment
available to it nor oblige any Finance Party to disclose any information
relating to its tax or other affairs or any computations in respect
thereof.
12. INCREASED COSTS
12.1 INCREASED COSTS
If, by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request or requirement
relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other
authority after the date hereof:
12.1.1 a Bank or any holding company of such Bank is unable to obtain
the rate of return on its capital which it would have been
able to obtain but for such Bank's entering into or assuming
or maintaining a commitment or performing its obligations
under the Finance Documents;
12.1.2 a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or assuming or maintaining
a commitment or performing its obligations under the Finance
Documents; or
12.1.3 there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining such Bank's
share of the Advances or any Unpaid Sum,
then the Parent shall, from time to time on demand of the Facility
Agent, promptly pay to the Facility Agent for the account of that Bank
amounts sufficient to indemnify that Bank or to enable that Bank to
indemnify its holding company from and against, as the case may be, (i)
such reduction in the rate of return of capital, (ii) such cost or (iii)
such increased cost.
12.2 INCREASED COSTS CLAIMS
12.2.1 A Bank intending to make a claim pursuant to Clause 12.1
(INCREASED COSTS) shall notify the Facility Agent of the event
giving rise to such claim, whereupon the Facility Agent shall
notify the Parent thereof.
12.2.2 Each Bank shall, as soon as practicable after demand by the
Facility Agent, provide a certificate confirming the amount of
its claim pursuant to Clause 12.1 (INCREASED COSTS).
<PAGE>
12.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 12, no Bank
shall be entitled to make any claim under this Clause 12 in respect of:
12.3.1 any cost, increased cost or liability as referred to in Clause
12.1 (INCREASED COSTS) to the extent the same is compensated
by the Mandatory Cost Rate; or
12.3.2 any cost, increased cost or liability compensated by Clause 10
(TAXES); or
12.3.3 any cost, increased cost or liability attributable to the
wilful breach by the relevant Bank of any law or regulation.
13. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make, fund
or allow to remain outstanding all or part of its share of the Advances,
then that Bank shall, promptly after becoming aware of the same, deliver
to the Parent through the Facility Agent a notice to that effect and:
13.1.1 such Bank shall not thereafter be obliged to participate in
the making of any Advances and the amount of its Available
Commitment shall be immediately reduced to zero; and
13.1.2 if the Facility Agent on behalf of such Bank so requires, the
Parent shall procure that each Borrower which has drawn an
Advance shall on such date as the Facility Agent shall have
specified repay such Bank's share of any outstanding Advances
together with accrued interest thereon and all other amounts
owing to such Bank under the Finance Documents.
14. MITIGATION
If, in respect of any Bank, circumstances arise which would or would
upon the giving of notice result in:
14.1.1 an increase in any sum payable to it or for its account
pursuant to Clause 10.1 (TAX GROSS-UP);
14.1.2 a claim for indemnification pursuant to Clause 10.2 (TAX
INDEMNITY) or Clause 12.1 (INCREASED COSTS); or
14.1.3 the reduction of its Available Commitment to zero or any
repayment to be made pursuant to Clause 13 (ILLEGALITY),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors under any of the
Clauses referred to in sub-clauses 14.1.1, 14.1.2 and 14.1.3, such Bank
shall promptly upon becoming aware of such circumstances notify the
Facility Agent thereof and, in consultation with the Facility Agent and
the Parent and to the extent that it can do so lawfully and without
prejudice to its own position, take reasonable steps (including a change
of location of its Facility Office or the transfer of its rights,
benefits and obligations under the
<PAGE>
Finance Documents to another financial institution acceptable to the
Parent and willing to participate in the Facility) to mitigate the
effects of such circumstances, PROVIDED THAT such Bank shall be under no
obligation to take any such action if, in the opinion of such Bank, to
do so might have any adverse effect upon its business, operations or
financial condition (other than any minor costs and expenses of an
administrative nature).
15. REPRESENTATIONS
Each Obligor makes on its own behalf the representations and warranties
set out in Clause 15.1 (LEGAL STATUS) to Clause 15.23 (ACQUISITION
TERMS) in relation to it and, in addition, the Parent makes the
representations set out therein in relation to the Group. The Obligors
acknowledge that the Finance Parties have entered into this Agreement in
reliance on those representations and warranties.
15.1 LEGAL STATUS
It is a company duly incorporated and validly existing under the laws of
the place of its incorporation.
15.2 CORPORATE POWERS
It has power to own its assets and conduct its business as it is now
being conducted. It, and in the case of the Offer Documents, Nutricia,
also has power to sign and deliver those of the Finance Documents and
Offer Documents to which it is party and to exercise its rights and
perform its obligations under those Finance Documents and Offer
Documents to which it is a party.
15.3 AUTHORISATIONS
The signature and delivery of those of the Finance Documents and Offer
Documents to which it is a party (or, in the case of the Offer
Documents, to which Nutricia is a party) and the exercise by it (or in
the case of the Offer Documents, by Nutricia) of its rights and the
performance of its obligations under those Finance Documents and Offer
Documents have been duly authorised.
15.4 BINDING OBLIGATIONS
Those of the Finance Documents and Offer Documents to which it is party
(or, in the case of the Offer Documents, to which Nutricia is a party)
have been duly signed and delivered by it. Its (and, in the case of the
Offer Documents, Nutricia's) obligations described in those Finance
Documents and Offer Documents to which it is party are its legal, valid,
binding and, subject to the qualifications as to matters of law set out
in those legal opinions referred to in Schedule 3 (CONDITIONS
PRECEDENT), enforceable obligations.
15.5 LEGALITY AND CONTRAVENTIONS
The signature and delivery of those of the Finance Documents and Offer
Documents to which it is party (or, in the case of the Offer Documents,
to which Nutricia is a party) and its (and, in the case of the Offer
Documents, Nutricia's) exercise of rights and performance of obligations
under those Finance Documents and Offer Documents:
<PAGE>
15.5.1 are not prohibited by law, regulation or order or by its
constitutional documents;
15.5.2 do not require any approval, filing, registration or exemption
or if any approval, filing, registration or exemption is
required and except where failure to obtain such approval,
filing, registration or exemption would not have a Material
Adverse Effect, it has been made or obtained in a timely
manner and remains in full force and effect, or in the case of
the application for advice, positive advice has been obtained;
and
15.5.3 are not prohibited by, and do not constitute an event of
default under, any material document or arrangement to which
it is a party (except the euro 1,400,000,000 Multicurrency
Credit Facility dated 23 November 1999, which will be repaid
with proceeds of the Senior Loan) and do not result in an
obligation to create an Encumbrance under any document or
arrangement to which it is a party which would constitute a
breach of Clause 17.3 (NEGATIVE PLEDGE).
15.6 BORROWING LIMIT
The borrowing of the full amount available under the Finance Documents
will not cause any limitation on the powers to borrow of any Borrower or
on the powers to give a guarantee of any Guarantor or their respective
directors to be exceeded.
15.7 NO EVENT OF DEFAULT OR POTENTIAL EVENT OF DEFAULT
No Event of Default or Potential Event of Default has occurred and
remains unremedied or unwaived and none will occur as a result of the
exercise of its rights or the performance of its obligations under the
Finance Documents.
15.8 RANKING AND OBLIGATIONS
Its obligations under the Finance Documents will rank at least PARI
PASSU in right and priority of payment with all its other present and
future unsecured and unsubordinated indebtedness (actual or contingent),
except for obligations mandatorily preferred by law applying to
companies generally.
15.9 STAMP DUTY
No stamp, registration or similar tax is payable, and no filing or
registration is required, in connection with the execution, performance
or enforcement of any Finance Document.
15.10 ACCOUNTS
Its most recent financial statements (consolidated and audited in the
case of the Parent) give a true and fair view of the financial condition
of such Obligor or, as the case may be, the Group during the relevant
financial year and were prepared in accordance with the relevant
Generally Accepted Accounting Principles consistently applied except to
the extent that the accompanying notes provide a description of a
different treatment.
<PAGE>
15.11 LITIGATION
No member of the Group is involved in any court or arbitration
proceedings nor is it aware that any proceedings of this kind are being
considered or threatened by any other person (other than as previously
disclosed to the Arrangers and Banks) which would or is reasonably
likely to have a Material Adverse Effect.
15.12 NO DEFAULT
No member of the Group is in breach of any law (including environmental
law), order, regulation, agreement or arrangement applicable to it or
any of its assets which in any such case would or is reasonably likely
to have a Material Adverse Effect.
15.13 CHANGE IN BUSINESS CONDITION
There has been no change in the business condition (financial or
otherwise), operations, performance or prospects of the Parent or the
Group taken as a whole (excluding, for these purposes, the effect as at
the date hereof of the Acquisition of Rexall Sundown) since 31 December
1999 which would have a Material Adverse Effect.
15.14 ENCUMBRANCES
Save for Permitted Encumbrances, no Encumbrance exists over any of the
present or future assets of any member of the Group.
15.15 WRITTEN INFORMATION
All written information supplied by any member of the Group is true,
complete and accurate in all material respects as at the date it was
given and is not misleading in any material respect and all financial
projections that have been prepared by the Arrangers and approved by the
Parent are based upon assumptions considered by it to be reasonable.
15.16 WINDING UP
No proceedings are current, pending or, so far as it is aware,
threatened for the winding up of any Obligor or any Material Subsidiary.
15.17 ENVIRONMENTAL COMPLIANCE
Each member of the Group has duly performed and observed in all material
respects all Environmental Laws, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution or waste or the
release or discharge of any toxic or hazardous substance in connection
with any real property which is or was at any time owned, leased or
occupied by any member of the Group or on which any member of the Group
has conducted any activity where failure to do so might reasonably be
expected to have a Material Adverse Effect.
15.18 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or is threatened against any
member of the Group where such claim would be reasonably likely, if
determined against such member of the Group, to have a Material Adverse
Effect.
<PAGE>
15.19 LICENCES AND CONSENTS
All necessary consents, licences, authorisations and approvals to the
transactions constituted by the Finance Documents and Offer Documents
have been obtained and are in full force and effect in accordance with
the terms of the Finance Documents or, as the case may be, the Offer
Documents or will be obtained in a timely manner. All consents,
licences, authorisations and other approvals necessary for the conduct
of the business of the Group and the absence of which would have a
Material Adverse Effect have been obtained and are in full force and
effect in accordance with the terms of the Finance Documents or, as the
case may be, the Offer Documents or will be obtained in a timely manner.
15.20 NO DEDUCTION OR WITHHOLDING
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it will not be required to make any deduction or withholding
from any payment it may make under the Finance Documents.
15.21 OWNERSHIP OF THE BORROWERS
Each of the Borrowers (other than the Parent) is a wholly-owned
subsidiary of the Parent.
15.22 ACQUISITION FUNDING
The amount available but undrawn under the Senior Loan (disregarding any
part of the original total commitments which has been cancelled) will at
all times equal or exceed the amount required by Nutricia to fund the
acquisition cost of the common stock of Rexall Sundown to the extent
that such stock has not yet been tendered to Nutricia or acquired
pursuant to the Merger.
15.23 ACQUISITION TERMS
The Parent has not, and the Parent has procured that Nutricia has not,
without the prior approval of the Arrangers:
(i) varied or waived the original offer price for the tender of
shares of Rexall Sundown;
(ii) varied or waived, the acceptance levels for the tender of
shares of Rexall Sundown;
(iii) extended the offer period for the tender of shares of Rexall
Sundown beyond any period contemplated in the Offer Documents;
or
(iv) except as contemplated by this Agreement, altered in any
material respect the way in which the consideration due to the
Rexall Sundown stockholders is funded from that set out in the
Offer Documents.
15.24 CLEAN-UP PERIOD
The Repeated Representations shall not apply to Rexall Sundown or any of
its Subsidiaries until the date falling 60 days after completion of the
Merger. The Parent agrees that any circumstance of which it is or
becomes aware at any time which, but
<PAGE>
for this Clause 15.24, would result in a breach of representation, has
been notified to the Arrangers prior to the date of this Agreement or,
as the case may be, will be promptly notified to them as soon as the
Parent becomes aware of it.
15.25 REPETITION OF REPRESENTATIONS
The Repeated Representations shall be deemed to be repeated by the
relevant Obligor by reference to the facts and circumstances then
existing on the first day of each Interest Period and on each date on
which an Advance is or is to be made.
15.26 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its Intellectual Property which could
reasonably be expected to have a Material Adverse Effect.
16. FINANCIAL INFORMATION
16.1 FINANCIAL INFORMATION
Each Obligor shall from time to time on the request of the Facility
Agent, furnish the Facility Agent with such information about the
business and financial condition of any Obligor, any other Material
Subsidiary or the Group as the Facility Agent may reasonably require.
16.2 SHAREHOLDER AND CREDITOR INFORMATION
The Parent shall, as soon as reasonably practicable, after the same are
supplied or made available, furnish the Facility Agent with such general
information as is supplied to its shareholders generally or, in the case
of any Obligor, its creditors generally or any class thereof.
16.3 ADDITIONAL FINANCIAL INDEBTEDNESS
No Obligor shall and the Parent shall procure that no other member of
the Group will incur, or agree to incur, at any time any Financial
Indebtedness in excess (when taken together with the aggregate Financial
Indebtedness of all other members of the Group other than in respect of,
or incurred to refinance any part of, this Facility) of an amount equal
to the aggregate of (a) euro 100,000,000 (or its equivalent in any other
currency); (b) an amount equal to the aggregate Financial Indebtedness
of the Parent and each of its subsidiaries on the date hereof; (c)
indebtedness described in paragraph (e) of the definition of Financial
Indebtedness; and (d) the principal amount of the New Convertible Bonds
issued by the Parent .
16.4 LIMITATION ON NON-OBLIGOR FINANCIAL INDEBTEDNESS
At all times, the aggregate amount of Financial Indebtedness (excluding
obligations owed by one member of the Group to another member of the
Group) incurred by members of the Group which are not Obligors shall not
exceed euro 200,000,000.
<PAGE>
17. COVENANTS
Each Obligor makes on its own behalf the covenants set out in Clause
17.1 (RANKING OF OBLIGATIONS) to Clause 17.16 (INTELLECTUAL PROPERTY) in
relation to it and, in addition, the Parent makes the covenants set out
therein in relation to the Group.
17.1 RANKING OF OBLIGATIONS
It will ensure that the obligations of each Obligor under each Finance
Document rank and will at all times rank at least PARI PASSU in right
and priority of payment with all that Obligor's other present and future
unsecured and unsubordinated indebtedness (actual or contingent) except
for obligations mandatorily preferred by law applying to companies
generally.
17.2 LEGALITY OF PERFORMANCE
It (or, in the case of the Offer Documents, Nutricia) will exercise its
rights and perform its obligations under the Finance Documents and the
Offer Documents without contravention of applicable laws. If approvals
are required, it (or, in the case of the Offer Documents, Nutricia) will
obtain and maintain them and will comply with their terms.
17.3 NEGATIVE PLEDGE
It will not create or allow to exist (and will procure that no member of
the Group creates or allows to exist) any Encumbrance over all or any of
its assets, present or future revenues or assets other than a Permitted
Encumbrance.
17.4 DISPOSAL OF ASSETS
It will not sell, lease, transfer or otherwise dispose of any of its
assets. It will also procure that no other member of the Group will
dispose of that Group member's assets. This does not apply to:
17.4.1 disposals in the ordinary course of trading; or
17.4.2 disposals to which an Instructing Group has agreed, in
writing; or
17.4.3 disposals of assets in exchange for other assets comparable or
superior as to type, value and quality; or
17.4.4 disposals from one Obligor to another Obligor; or
17.4.5 disposals from a Group member (which is not an Obligor) to an
Obligor or to another Group member which is also not an
Obligor; or
17.4.6 transfers of cash pursuant to the Group's cash pooling
arrangements in place at the date of this Agreement and
operated in the ordinary course of the Group's banking
arrangements unless at the time of such transfer there is any
Event of Default or Potential Event of Default outstanding; or
17.4.7 a disposal of non-core assets where the assets disposed of do
not account for more than 10% of the consolidated net sales of
the Group calculated on the basis of the financial statements
of the Group delivered pursuant to Schedule 3
<PAGE>
(CONDITIONS PRECEDENT) in respect of the preceding financial
year PROVIDED THAT the exception contained in this sub-clause
17.4.7 shall apply to only one disposal or a related series
of disposals of the same asset or business, during the term
of the Facility; or
17.4.8 any disposal (other than those in sub-clauses 17.4.1 to 17.4.7
above) made on arms' length terms in any financial year of the
Parent where the assets disposed of when aggregated with any
other asset so disposed of in such financial year, do not
account for more than 5% of the consolidated net sales of the
Group calculated on the basis of the financial statements of
the Group delivered pursuant to Schedule 3 (CONDITIONS
PRECEDENT) in respect of the preceding financial year.
17.5 ACQUISITIONS
It will not (and will procure that no member of the Group will) after
the date of this Agreement (except with the written consent of an
Instructing Group, such consent not to be unreasonably withheld or
delayed), acquire or agree to acquire any business or parts of any
business or any company or shares in any company, in each case outside
the Group, except where the aggregate consideration (including any
deferred consideration and any debt assumed and the book value of any
assets acquired as part of the exchange of assets referred to in Clause
17.4.3 (DISPOSAL OF ASSETS)) for such acquisitions does not, in any
financial year of the Parent exceed euro 750,000,000 PROVIDED THAT this
Clause 17.5 does not apply to any routine capital expenditure in the
ordinary course of business.
17.6 CARRY ON BUSINESS
It will not make any material change in the overall nature of the
business of the Group as conducted at the date of this Agreement.
17.7 COMPLIANCE WITH LAWS
It will comply and ensure that all members of the Group comply, in all
material respects, with all laws, orders, regulations, agreements or
arrangements applicable to it or any of its assets and the terms of all
permits, authorisations and licences where failure to do so would have a
Material Adverse Effect.
17.8 INSURANCE
It will maintain and will ensure that each Material Subsidiary maintains
insurance relating to its assets and activities against those risks and
at those levels which a company operating in the same field would
usually maintain.
17.9 INFORMATION
All information which will be supplied in writing (which includes all
information supplied on any electronic data carrier or in any electronic
form) by the Parent to the Banks under this Agreement will on the date
it is supplied, be true, complete and accurate in all material respects
and will not omit to state any material fact necessary to make such
information, in the light of the circumstances under which such
information is provided, not misleading and all forecasts and
projections will have been prepared
<PAGE>
after taking due care and will be based on reasonable assumptions, but
with no representation given as to their realisation.
17.10 NOTIFICATION OF EVENTS OF DEFAULT
It will promptly inform the Facility Agent of the occurrence of any
Event of Default or Potential Event of Default and, upon receipt of a
written request to that effect from the Facility Agent, confirm to the
Facility Agent that, save as previously notified to the Facility Agent
or as notified in such confirmation, no Event of Default or Potential
Event of Default has occurred.
17.11 MATERIAL LITIGATION
It will notify the Facility Agent promptly after it becomes aware that
any proceedings of the kind described in Clause 15.11 (LITIGATION) are
being threatened or are pending.
17.12 ENVIRONMENTAL COMPLIANCE
It will comply and ensure that all other members of the Group comply in
all material respects with all Environmental Law and obtain and maintain
any Environmental Permits and take all reasonable steps in anticipation
of known or expected future changes to or obligations under the same,
breach of which (or failure to obtain, maintain or take which) might
reasonably be expected to have a Material Adverse Effect.
17.13 VARIATION OR WAIVER
The Parent will not, and the Parent will procure that Nutricia will not,
without the consent of the Arrangers:
(i) waive or vary the original offer price for the tender of
shares of Rexall Sundown;
(ii) waive or vary the acceptance levels for the tender of shares
of Rexall Sundown;
(iii) extend the offer period for the tender of shares of Rexall
Sundown beyond any period contemplated in the Offer Documents;
or
(iv) except as contemplated by this Agreement, alter in any
material respect the way in which the consideration due to the
Rexall Sundown shareholders is funded from that set out in the
Offer Document.
17.14 OFFER
17.14.1 The Parent will use all reasonable endeavours to cause, at the
earliest practicable time, the Merger to be consummated, once
a majority of the outstanding shares in Rexall Sundown on a
fully diluted basis have been acquired pursuant to the Offer,
subject to and in accordance with the terms of the Merger
Agreement and applicable law.
17.14.2 The Parent will keep the Facility Agent promptly informed of
all material developments in relation only to the price,
timing and (on request of the Facility Agent) the level of
acceptances under Offer Documents.
<PAGE>
17.15 ISSUER OF CONVERTIBLE BONDS
The Parent shall be the issuer of the New Convertible Bonds, which New
Convertible Bonds shall be subordinated in right of payment to the
obligations of the Parent hereunder.
17.16 INTELLECTUAL PROPERTY
Each Obligor shall, and shall procure that each Group member shall do
all acts as are reasonably practicable to maintain, protect and
safeguard the Intellectual Property necessary for the business of the
relevant Group member where failure to do so could reasonably be
expected to have a Material Adverse Effect and not terminate or
discontinue the use of any such Intellectual Property where such
termination or discontinuance could reasonably be expected to have a
Material Adverse Effect.
18. EVENTS OF DEFAULT
Each of Clause 18.1 (NON PAYMENT) to Clause 18.14 (VALIDITY) describes
circumstances which constitute an Event of Default for the purposes of
this Agreement.
18.1 NON-PAYMENT
Any Obligor fails to pay any sum due under the Finance Documents when
due except, in the case of interest payments only, where such
non-payment is solely due to an administrative error and such amount is
paid within three Business Days of the date upon which it become due.
18.2 SPECIFIC COVENANTS
Any Obligor fails duly to perform or comply with any of its obligations
under Clause 17.3 (NEGATIVE PLEDGE) to Clause 17.5 (ACQUISITIONS).
18.3 OTHER DEFAULTS
Any Obligor fails to perform or comply with any of its other obligations
under any Finance Document. There will not, however, be an Event of
Default under this paragraph if the failure is, in the opinion of the
Facility Agent, capable of remedy and is remedied within 10 Business
Days.
18.4 UNTRUE STATEMENTS
Any statement made, or deemed repeated, in any representation in any
Finance Document, or in any document required to be delivered by any
Obligor under any Finance Document, is untrue or misleading in any
material respect when that statement is made or deemed repeated.
18.5 CROSS DEFAULT
Any Financial Indebtedness of the Parent or any of its subsidiaries is
not paid when due (or following any applicable original grace period),
any Financial Indebtedness of the Parent or any of its subsidiaries is
declared to be or otherwise becomes due and payable prior to its
specified maturity, any commitment for any Financial Indebtedness of the
Parent or any of its subsidiaries is cancelled or suspended by a
creditor of the Parent or any of its subsidiaries or any creditor of the
Parent or any of its subsidiaries becomes entitled to declare any
Financial Indebtedness of the Parent or any of its
<PAGE>
subsidiaries due and payable prior to its specified maturity, PROVIDED
THAT it shall not constitute an Event of Default if the aggregate amount
(or its equivalent in euros) of all such Financial Indebtedness is less
than euro 15,000,000.
18.6 INSOLVENCY AND REORGANISATION
Any procedure is commenced with a view to the winding-up or
re-organisation of the Parent or any Material Subsidiary (save for the
purposes of a solvent reconstruction, amalgamation, reorganisation,
merger or consolidation or which is on terms approved in advance by an
Instructing Group), or with a view to the appointment of an
administrator, receiver, administrative receiver, trustee in bankruptcy
or similar officer in relation to the Parent or any Material Subsidiary
or any of their assets. This procedure may be a Court procedure or any
other step which under applicable law is a possible means of achieving
any of those results. It will not be an Event of Default, however, if
any procedure is commenced with a view to the insolvent winding up of a
member of the Group and such procedure is frivolous or vexatious.
18.7 ENFORCEMENT OF SECURITY
The holder of any Encumbrance over any of the assets of the Parent or
any Material Subsidiary takes any step to enforce that Encumbrance. It
will not be an Event of Default, however, if (a) the aggregate book
value (or its equivalent in euros) of the assets subject to any
enforcement is less than euro 1,000,000 or (b) if any procedure is
commenced and such procedure is discharged within 30 days after being
levied or enforced.
18.8 ATTACHMENT OR DISTRESS
Any asset of the Parent or any Material Subsidiary is subject to
attachment, sequestration, execution or any similar process. It will not
be an Event of Default, however, if (a) the aggregate book value (or its
equivalent in euros) of the assets subject to any attachment,
sequestration, execution or any similar process is less than euro
1,000,000 or (b) if any procedure is commenced and such procedure is
discharged within 30 days after being levied or enforced.
18.9 INABILITY TO PAY DEBTS
Any of the following is true:
18.9.1 the Parent or any Material Subsidiary is unable to pay its
debts as they fall due.
18.9.2 the value of the Parent's or any Material Subsidiary's assets
is less than the amount of its liabilities (taking into
account its contingent and prospective liabilities).
18.9.3 the Parent or any Material Subsidiary admits its inability to
pay its debts as and when they fall due or seeks a composition
or arrangement with its creditors generally or any class of
them.
<PAGE>
18.10 INSOLVENCY EQUIVALENCE
Anything analogous to any of the events described in Clauses 18.6
(INSOLVENCY AND REORGANISATION), 18.7 (ENFORCEMENT OF SECURITY), 18.8
(ATTACHMENT OR DISTRESS) or 18.9 (INABILITY TO PAY DEBTS) occurs in any
jurisdiction.
18.11 UNLAWFULNESS OR REPUDIATION
It is unlawful for any Obligor to comply with its payment or other
material obligations under any Finance Document, or any Obligor
repudiates any of those obligations.
18.12 MATERIAL ADVERSE CHANGE
There is a change in the business condition (financial or otherwise),
operations, performance or prospects of the Group taken as a whole since
the date at which its most recent audited financial statements were
stated to be prepared which has a Material Adverse Effect.
18.13 LITIGATION
The Parent or any of its subsidiaries is involved in any court or
arbitration proceedings or such proceedings are pending or threatened
which in each case would or is reasonably likely to restrain performance
by any Obligor of its obligations under the Finance Documents or would
have or is reasonably likely to have a Material Adverse Effect.
18.14 VALIDITY
Any of the obligations of an Obligor under any of the Finance Documents
cease to be valid and binding.
PROVIDED ALWAYS THAT Rexall Sundown and its subsidiaries will be
excluded from Clauses 18.2, 18.3, 18.4, 18.7, 18.8, 18.10 (to the extent
it refers to and incorporates Clauses 18.7 and 18.8) and 18.13 for the
period from the date of this Agreement until the date falling 60 days
after the drawdown of the first Advance hereunder.
18.15 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default and at any time thereafter
whilst it is continuing, the Facility Agent may (and, if so instructed
by an Instructing Group, shall) by notice to the Parent:
18.15.1 declare all or any part of the Advances to be immediately due
and payable (whereupon the same shall become so payable
together with accrued interest thereon and any other sums then
owed by the Borrowers under the Finance Documents) or declare
all or any part of the Advances to be due and payable on
demand of the Facility Agent; and/or
18.15.2 declare that any undrawn portion of the Facility shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero.
<PAGE>
18.16 ADVANCES DUE ON DEMAND
If, pursuant to Clause 18.15 (ACCELERATION AND CANCELLATION), the
Facility Agent declares all or any part of the Advances to be due and
payable on demand of the Facility Agent, then, and at any time
thereafter, the Facility Agent may (and, if so instructed by an
Instructing Group, shall) by notice to the Borrowers:
18.16.1 require repayment of all or such part of the Advances on such
date as it may specify in such notice (whereupon the same
shall become due and payable on the date specified together
with accrued interest thereon and any other sums then owed by
the Borrowers under the Finance Documents) or withdraw its
declaration with effect from such date as it may specify;
and/or
18.16.2 select as the duration of any Interest Period which begins
whilst such declaration remains in effect a period of two
weeks or less.
19. GUARANTEE AND INDEMNITY
19.1 GUARANTEE AND INDEMNITY
Each of the Guarantors irrevocably and unconditionally:
19.1.1 guarantees to each Finance Party the due and punctual
observance and performance of all the terms, conditions and
covenants on the part of each Borrower contained in the
Finance Documents and agrees to pay from time to time on first
demand any and every sum or sums of money which each Borrower
is at any time liable to pay to any Finance Party under or
pursuant to the Finance Documents and which has become due and
payable but has not been paid at the time such demand is made;
and
19.1.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on first demand from and against any loss
incurred by any Finance Party as a result of any of the
obligations of any Borrower under or pursuant to the Finance
Documents being or becoming void, voidable, unenforceable or
ineffective as against a Borrower for any reason whatsoever,
whether or not known to any Finance Party or any other person,
the amount of such loss being the amount which the person or
persons suffering it would otherwise have been entitled to
recover from that Borrower.
19.2 ADDITIONAL SECURITY
The obligations of each Guarantor herein contained shall be in addition
to and independent of every other security which any Finance Party may
at any time hold in respect of any of any Obligor's obligations under
the Finance Documents.
19.3 CONTINUING OBLIGATIONS
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment or satisfaction of all or any of the
obligations of the Obligors under the Finance Documents and shall
continue in full force and effect until final payment in full of all
<PAGE>
amounts owing by any Obligor under the Finance Documents and total
satisfaction of all the Obligors' actual and contingent obligations
under the Finance Documents.
19.4 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of each Guarantor upon
any Finance Party by the Finance Documents or by law shall be
discharged, impaired or otherwise affected by:
19.4.1 the winding-up, dissolution, administration or re-organisation
of any Obligor or any other person or any change in its
status, function, control or ownership;
19.4.2 any of the obligations of any Obligor or any other person
under the Finance Documents or under any other security taken
in respect of any of its obligations under the Finance
Documents being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
19.4.3 time or other indulgence being granted or agreed to be granted
to any Obligor or any other person in respect of its
obligations under the Finance Documents or under any such
other security;
19.4.4 any amendment to, or any variation, waiver or release of, any
obligation of any Obligor or any other person under the
Finance Documents or under any such other security;
19.4.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of any Obligor's obligations under the Finance Documents;
19.4.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any Obligor's obligations under
the Finance Documents; or
19.4.7 any other act, event or omission which, but for this Clause
19.4, might operate to discharge, impair or otherwise affect
any of the obligations of any Guarantor herein contained or
any of the rights, powers or remedies conferred upon any of
the Finance Parties by the Finance Documents or by law.
19.5 SETTLEMENT CONDITIONAL
Any settlement or discharge between an Obligor and any of the Finance
Parties shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each Finance
Party shall be entitled to recover the value or amount of such security
or payment from such Obligor subsequently as if such settlement or
discharge had not occurred.
<PAGE>
19.6 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of the Parent by the
Finance Documents or by law:
19.6.1 to make any demand of any Obligor;
19.6.2 to take any action or obtain judgment in any court against
any Obligor;
19.6.3 to make or file any claim or proof in a winding-up or
dissolution of any Obligor; or
19.6.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Obligor under the
Finance Documents.
19.7 DEFERRAL OF GUARANTORS' RIGHTS
Each Guarantor agrees that, so long as any amounts are or may be owed by
an Obligor under the Finance Documents or an Obligor is under any actual
or contingent obligations under the Finance Documents, it shall not
exercise any rights which it may at any time have by reason of
performance by it of its obligations under the Finance Documents:
19.7.1 to be indemnified by an Obligor; and/or
19.7.2 to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
19.7.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other security taken
pursuant to, or in connection with, the Finance Documents by
all or any of the Finance Parties.
19.8 SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Bank by virtue of Clause
19.1 (GUARANTEE AND INDEMNITY) may, in that Bank's discretion, be
credited to a suspense or impersonal account and may be held in such
account for so long as such Bank thinks fit pending the application from
time to time (as such Bank may think fit) of such moneys in or towards
the payment and discharge of any amounts owing by an Obligor to such
Bank under the Finance Documents.
20. FEES
20.1 FRONT END FEE
The Parent shall pay to the Arrangers the fees specified in the letter
of even date herewith from the Arrangers to the Parent at the times, and
in the amounts, specified in such letter.
<PAGE>
20.2 AGENCY FEE
The Parent shall pay to the Facility Agent for its own account the
agency fees specified in the letter of even date herewith from the
Facility Agent to the Parent at the times, and in the amounts, specified
in such letter.
21. COSTS AND EXPENSES
21.1 TRANSACTION EXPENSES
The Parent shall, from time to time on demand of the Facility Agent,
reimburse the Facility Agent and each of the Arrangers for all
reasonable costs and expenses (including reasonable legal fees) together
with any VAT thereon incurred by it in connection with the negotiation,
preparation and execution of the Finance Documents, any other document
referred to in the Finance Documents and the completion of the
transactions therein contemplated.
21.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Parent shall, from time to time on demand of the Facility Agent,
reimburse the Finance Parties for all costs and expenses (including
reasonable legal fees) on a full indemnity basis together with any VAT
thereon incurred in or in connection with the preservation and/or
enforcement of any of the rights of the Finance Parties under the
Finance Documents and any document referred to in the Finance Documents
(including, without limitation, any costs and expenses relating to any
investigation as to whether or not an Event of Default might have
occurred or is likely to occur or any steps necessary or desirable in
connection with any proposal for remedying or otherwise resolving an
Event of Default or Potential Event of Default).
21.3 STAMP TAXES
The Parent shall pay all stamp, registration and other taxes to which
the Finance Documents, any other document referred to in the Finance
Documents or any judgment given in connection therewith is or at any
time may be subject and shall, from time to time on demand of the
Facility Agent, indemnify the Finance Parties against any liabilities,
costs, claims and expenses resulting from any failure to pay or any
delay in paying any such tax.
21.4 AMENDMENT COSTS
If an Obligor requests any amendment, waiver or consent then the Parent
shall, within five Business Days of demand by the Facility Agent,
reimburse the Finance Parties for all costs and expenses (including
reasonable legal fees) together with any VAT thereon incurred by such
person in responding to or complying with such request.
21.5 BANKS' LIABILITIES FOR COSTS
If the Parent fails to perform any of its obligations under this Clause
21, each Bank shall, in its Proportion, indemnify each of the Facility
Agent and the Arrangers against any loss incurred by any of them as a
result of such failure.
<PAGE>
22. DEFAULT INTEREST AND BREAK COSTS
22.1 DEFAULT INTEREST PERIODS
If any sum due and payable by an Obligor hereunder is not paid on the
due date therefor in accordance with Clause 25 (PAYMENTS) or if any sum
due and payable by an Obligor under any judgment of any court in
connection herewith is not paid on the date of such judgment, the period
beginning on such due date or, as the case may be, the date of such
judgment and ending on the date upon which the obligation of such
Obligor to pay such sum is discharged shall be divided into successive
periods, each of which (other than the first) shall start on the last
day of the preceding such period and the duration of each of which shall
(except as otherwise provided in this Clause 22) be selected by the
Facility Agent.
22.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is 1% per annum above the percentage
rate which would apply to an Advance in the amount and currency of such
Unpaid Sum and for the same Interest Period, PROVIDED THAT if such
Unpaid Sum relates to an Advance which became due and payable on a day
other than the last day of an Interest Period relating thereto:
22.2.1 the first Interest Period applicable to such Unpaid Sum shall
be of a duration equal to the unexpired portion of the current
Interest Period relating to that Advance; and
22.2.2 the percentage rate of interest applicable thereto from time
to time during such period shall be that which exceeds by 1%
the rate which would have been applicable to it had it not so
fallen due.
22.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 22.2 (DEFAULT
INTEREST) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Obligor owing such Unpaid Sum on the last day of each
Interest Period in respect thereof or on such other dates as the
Facility Agent may specify by notice to such Obligor.
22.4 BREAK COSTS
If any Bank or the Facility Agent on its behalf receives or recovers all
or any part of such Bank's share of an Advance or Unpaid Sum otherwise
than on the last day of an Interest Period relating thereto, the Parent
shall pay to the Facility Agent on demand for account of such Bank an
amount equal to the amount (if any) by which (a) the additional interest
which would have been payable on the amount so received or recovered had
it been received or recovered on the last day of that Interest Period
exceeds (b) the amount of interest which in the opinion of the Facility
Agent would have been payable to the Facility Agent on the last day of
that Interest Period in respect of a deposit in the currency of the
amount so received or recovered equal to the amount so received or
recovered placed by it with a prime bank in the European interbank
market for a period starting on the third Business Day following the
date of such receipt or recovery and ending on the last day of that
Interest Period.
<PAGE>
23. PARENT'S INDEMNITIES
23.1 PARENT'S INDEMNITY
The Parent undertakes to indemnify:
23.1.1 each Finance Party against any cost, claim, loss, expense
(including reasonable legal fees) or liability together with
any VAT thereon, whether or not reasonably foreseeable, which
it may sustain or incur as a consequence of the occurrence of
any Event of Default or any default by any Obligor in the
performance of any of the obligations expressed to be assumed
by it in the Finance Documents;
23.1.2 the Facility Agent against any cost or loss it may suffer or
incur as a result of its entering into, or performing, any
foreign exchange contract for the purposes Clause 25
(PAYMENTS);
23.1.3 each Bank against any cost or loss it may suffer under Clause
21.5 (BANKS' LIABILITIES FOR COSTS) or Clause 28.5
(INDEMNIFICATION);
23.1.4 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its
portion of an Advance requested by any Borrower but not made
by reason of the operation of any one or more of the
provisions hereof; and
23.1.5 each Bank against any cost or loss it may suffer or any
reduction in its return on capital that it would have been
able to obtain but for entering into or performing its
obligations under this Agreement as a result of the minimum
reserve requirements imposed on it by the European Central
Bank in relation to an Advance or funding an Advance.
23.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from an Obligor under the Finance Documents or
any order, judgment given or made in relation thereto has to be
converted from the currency (the "FIRST CURRENCY") in which such Sum is
payable into another currency (the "SECOND CURRENCY") for the purpose
of:
23.2.1 making or filing a claim or proof against such Obligor; or
23.2.2 obtaining or enforcing an order, judgment in any court or
other tribunal,
the Parent shall indemnify each person to whom such Sum is due from and
against any loss suffered or incurred as a result of any discrepancy
between (a) the rate of exchange used for such purpose to convert such
Sum from the First Currency into the Second Currency and (b) the rate or
rates of exchange available to such person at the time of receipt of
such Sum.
23.3 ACQUISITION INDEMNITY
23.3.1 The Parent shall indemnify the Facility Agent, each
Arranger and each Bank (each an "INDEMNIFIED PARTY") from
time to time within five Business Days
<PAGE>
of demand of the Indemnified Party, against any cost, claim,
loss, expense (including reasonable legal fees) or liability
together with VAT thereon, whether or not reasonably
foreseeable, which the relevant Indemnified Party may
sustain or properly incur (except to the extent that the
same result from the negligence or wilful misconduct or
breach of Finance Documents of that Indemnified Party)
arising out of a claim or action of any person relating to
the Offer or any acquisition by Nutricia or any person
acting in concert with the Parent or Nutricia of any shares
of Rexall Sundown or any use of the proceeds of any Advance.
23.3.2 Any Indemnified Party intending to invoke sub-clause 23.3.1
shall give prompt notice in writing to the Parent upon such
Indemnified Party becoming aware of any actual or potential
claim, damage, loss, cost or expense, and the Parent shall
thereafter be entitled to be joined as party in any
proceeding and/or to give directions to the relevant
Indemnified Party in relation to the conduct of such
proceeding PROVIDED THAT (a) the Parent gives promptly
notice in writing of its intention to give such directions to
the Indemnified Party, (b) the Parent gives such directions
taking into account at all times the business
sensitivities and franchise position of the Indemnified
Party and (c) the Parent does not give directions in
respect of regulatory or supervisory proceedings of any
governmental authority or other similar proceedings.
23.3.3 No Indemnified Party shall settle, compromise, consent to
the entry of any judgment in or otherwise seek to terminate
(each a "SETTLEMENT") any such proceedings without the
Parent's prior written consent (such consent not to be
unreasonably withheld or delayed, taking into account
without limitation the cost to the Parent and that
Indemnified Party of continuing, the likely outcome
of that proceeding and the adverse effects (actual or
potential) on the business interests and/or reputation of
the Parent and that Indemnified Party of not settling).
The Parent shall not be liable to indemnify any
Indemnified Party for any settlement of any proceeding made
or effected without the Parent's prior written consent.
23.3.4 The Parent will lose its right to give directions in relation
to any proceedings if (a) it breaches any obligations
hereunder or (b) at the written request of the Indemnified
Party, and in respect of (b) the Parent's obligation to
indemnify the Indemnified Party will cease on the date of such
request.
23.3.5 The Parent further agrees that no Indemnified Party shall have
any liability (whether direct or indirect, in contract, tort
or otherwise) to the Obligors or any of their shareholders or
creditors for or in connection with the transactions referred
to above, except to the extent such liability results from
such Indemnified Party's negligence, wilful misconduct or any
breach of the Finance Documents by the Indemnified Party.
<PAGE>
24. CURRENCY OF ACCOUNT AND PAYMENT
The euro is the currency of account and payment for each and every sum
at any time due from an Obligor hereunder, PROVIDED THAT:
24.1.1 each repayment of an Advance or Unpaid Sum or a part thereof
shall be made in the currency in which such Advance or Unpaid
Sum is denominated at the time of that repayment;
24.1.2 each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated;
24.1.3 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
24.1.4 each payment pursuant to Clause 10.2 (TAX INDEMNITY), Clause
12.1 (INCREASED COSTS) or Clause 23.1 (PARENT'S INDEMNITY)
shall be made in the currency specified by the party claiming
thereunder; and
24.1.5 any amount expressed to be payable in a currency other than
euros shall be paid in that other currency.
If after the date of this Agreement a member state becomes a Subsequent
Participant, all obligations under this Agreement (including any
obligation in respect of any Bank's Available Commitment) to make a
payment in its national currency unit shall be redenominated into the
euro unit on the date on which it becomes a Subsequent Participant (but
otherwise in accordance with EMU Legislation).
25. PAYMENTS
25.1 PAYMENTS TO THE FACILITY AGENT
On each date on which this Agreement requires an amount to be paid by an
Obligor or a Bank, such Obligor or, as the case may be, such Bank shall
make the same available to the Facility Agent for value on the due date
at such time and in such funds and to such account with such bank as the
Facility Agent shall specify from time to time.
25.2 PAYMENTS BY THE FACILITY AGENT
25.2.1 Save as otherwise provided herein, each payment received by
the Facility Agent pursuant to Clause 25.1 (PAYMENTS TO THE
FACILITY AGENT) shall:
(a) in the case of a payment received for the account of a
Borrower, be made available by the Facility Agent to
such Borrower by application:
(i) first, in or towards payment (on the date, and in
the currency and funds, of receipt) of any amount
then due from such Borrower hereunder to the
person from whom the amount was so received or in
or towards the purchase of any amount of any
currency to be so applied; and
<PAGE>
(ii) secondly, in or towards payment (on the date, and
in the currency and funds, of receipt) to such
account with such bank in the principal financial
centre of the country of the currency of such
payment (or, in the relation to the euro in the
financial centre in a Participating Member State)
as such Borrower shall have previously notified to
the Facility Agent for this purpose; and
(b) in the case of any other payment, be made available by
the Facility Agent to the person entitled to receive the
payment in accordance with this Agreement (in the case
of a Bank, for the account of its Facility Office) for
value as soon as reasonably practicable after receipt by
the Facility Agent by transfer to the account of the
person with a bank in the principal financial centre of
the country of the currency of such payment (or, in
relation to the euro, in the financial centre in a
Participating Member State) as that person has
previously notified to the Facility Agent.
25.2.2 A payment will be deemed to have been made by the Facility
Agent on the date on which it is required to be made under
this Agreement if the Facility Agent has, on or before that
date, taken steps to make that payment in accordance with the
regulations or operating procedures of the clearing or
settlement system used by the Facility Agent in order to make
the payment.
25.3 PAYMENTS BY THE FACILITY AGENT TO THE BANKS
Any amount payable by the Facility Agent to the Banks under this
Agreement in the currency of a Participating Member State shall be paid
in the euro unit.
25.4 NO SET-OFF
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of and without any deduction for or on account of
any set-off or counterclaim.
25.5 CLAWBACK
Where a sum is to be paid hereunder to the Facility Agent for account of
another person, the Facility Agent shall not be obliged to make the same
available to that other person or to enter into or perform any exchange
contract in connection therewith until it has been able to establish to
its satisfaction that it has actually received such sum, but if it does
so and it proves to be the case that it had not actually received such
sum, then the person to whom such sum or the proceeds of such exchange
contract was so made available shall on request refund the same to the
Facility Agent together with an amount sufficient to indemnify the
Facility Agent against any cost or loss it may have suffered or incurred
by reason of its having paid out such sum or the proceeds of such
exchange contract prior to its having received such sum.
25.6 PARTIAL PAYMENTS
If and whenever a payment is made by an Obligor hereunder and the
Facility Agent receives an amount less than the due amount of such
payment the Facility Agent may
<PAGE>
apply the amount received towards the obligations of the Obligors under
this Agreement in the following order:
25.6.1 FIRST, in or towards payment of any unpaid fees, costs and
expenses of each of the Facility Agent and the Arrangers;
25.6.2 SECONDLY, in or towards payment PRO RATA of any accrued
interest due but unpaid;
25.6.3 THIRDLY, in or towards payment PRO RATA of any principal due
but unpaid; and
25.6.4 FOURTHLY, in or towards payment PRO RATA of any other sum due
but unpaid.
25.7 VARIATION OF PARTIAL PAYMENTS
The order of payments set out in Clause 25.6 (PARTIAL PAYMENTS) shall
override any appropriation made by the Obligor to which the partial
payment relates but the order set out in sub-clauses 25.6.2, 25.6.3 and
25.6.4 of Clause 25.6 (PARTIAL PAYMENTS) may be varied if agreed by all
the Banks.
25.8 BUSINESS DAYS
25.8.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
25.8.2 During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original
due date.
26. SET-OFF
26.1 CONTRACTUAL SET-OFF
Each Obligor authorises each Bank following the occurrence of an Event
of Default to apply any credit balance to which such Obligor is entitled
on any account of such Obligor with such Bank in satisfaction of any sum
due and payable from such Obligor to such Bank under the Finance
Documents but unpaid. For this purpose, each Bank is authorised to
purchase with the moneys standing to the credit of any such account such
other currencies as may be necessary to effect such application.
26.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause
26.1 (CONTRACTUAL SET-OFF).
27. SHARING
27.1 PAYMENTS TO BANKS
If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is
received or recovered other than in accordance with Clause 25
(PAYMENTS), then such Recovering Bank shall:
27.1.1 notify the Facility Agent of such receipt or recovery;
<PAGE>
27.1.2 at the request of the Facility Agent, promptly pay to the
Facility Agent an amount (the "SHARING PAYMENT") equal to such
receipt or recovery less any amount which the Facility Agent
determines may be retained by such Recovering Bank as its
share of any payment to be made in accordance with Clause 25.6
(PARTIAL PAYMENTS).
27.2 REDISTRIBUTION OF PAYMENTS
The Facility Agent shall treat the Sharing Payment as if it had been
paid by the relevant Obligor and distribute it between the Finance
Parties (other than the Recovering Bank) in accordance with Clause 25.6
(PARTIAL PAYMENTS).
27.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 27.2
(REDISTRIBUTION OF PAYMENTS) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount
equal to the Sharing Payment).
27.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
27.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 27.2 (REDISTRIBUTION OF PAYMENTS) shall,
upon request of the Facility Agent, pay to the Facility Agent
for account of such Recovering Bank an amount equal to its
share of such Sharing Payment; and
27.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will
be liable to the reimbursing party for the amount so
reimbursed.
27.5 EXCEPTION
This Clause 27 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
27.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court it shall give
prior notice to the Facility Agent and the other Banks. If any Bank
shall commence any action in any court to enforce its rights hereunder
and, as a result thereof or in connection therewith, receives any
amount, then such Bank shall not be required to share any portion of
such amount with any Bank which has the legal right to, but does not,
join in such action or commence and diligently prosecute a separate
action to enforce its rights in another court.
<PAGE>
28. THE AGENT, THE ARRANGERS AND THE BANKS
28.1 APPOINTMENT OF THE FACILITY AGENT
Each of the Arrangers and the Banks hereby appoints the Facility Agent
to act as its agent in connection herewith and authorises the Facility
Agent to exercise such rights, powers, authorities and discretions as
are specifically delegated to the Facility Agent by the terms hereof
together with all such rights, powers, authorities and discretions as
are reasonably incidental thereto.
28.2 FACILITY AGENT'S DISCRETIONS
The Facility Agent may:
28.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto,
that (a) any representation made or deemed to be made by an
Obligor in connection with the Finance Documents is true, (b)
no Event of Default or Potential Event of Default (except with
respect to an Event of Default under Clause 18.1 hereof) has
occurred, (c) no Obligor is in breach of or default under its
obligations under the Finance Documents and (d) any right,
power, authority or discretion vested herein upon an
Instructing Group, the Banks or any other person or group of
persons has not been exercised;
28.2.2 assume that (a) the Facility Office of each Bank is that
notified to it by such Bank in writing and (b) the information
provided by each Bank pursuant to Clause 31 (NOTICES), Clause
28.14 (BANKS' MANDATORY COST DETAILS) and Schedule 10
(MANDATORY COSTS) is true and correct in all respects until it
has received from such Bank notice of a change to the Facility
Office or any such information and act upon any such notice
until the same is superseded by a further notice;
28.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
28.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of an Obligor upon a
certificate signed by or on behalf of such Obligor;
28.2.5 rely upon any communication or document believed by it to be
genuine;
28.2.6 refrain from exercising any right, power or discretion vested
in it as agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised,
as to the manner in which it should be exercised;
28.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with this Agreement until it
shall have received such security as it may require (whether
by way of payment in advance or otherwise) for all costs,
claims,
<PAGE>
losses, expenses (including legal fees) and liabilities
together with any VAT thereon which it will or may expend or
incur in complying with such instructions; and
28.2.8 assume (unless it has specific notice to the contrary) that
any notice or request made by the Parent is made on behalf of
all the Obligors.
28.3 FACILITY AGENT'S OBLIGATIONS
The Facility Agent shall:
28.3.1 promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Facility Agent from
an Obligor under the Finance Documents;
28.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by an Obligor in the due performance of
or compliance with its obligations under the Finance Documents
of which the Facility Agent has notice from any other party
hereto or, with relation to Clause 18.1 (NON-PAYMENT) of which
it has actual knowledge;
28.3.3 save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the Arrangers
and the Banks; and
28.3.4 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent hereunder.
The Facility Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
28.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Facility Agent nor any of the Arrangers shall:
28.4.1 be bound to enquire as to (a) whether or not any
representation made or deemed to be made by an Obligor in
connection with the Finance Documents is true, (b) the
occurrence or otherwise of any Event of Default or Potential
Event of Default, (c) the performance by an Obligor of its
obligations under the Finance Documents or (d) any breach of
or default by an Obligor of or under its obligations under the
Finance Documents;
28.4.2 be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
28.4.3 be bound to disclose to any other person any information
relating to any member of the Group if (a) such person, on
providing such information, expressly stated to the Facility
Agent or, as the case may be, the Arrangers, that such
information was confidential or (b) such disclosure would or
might
<PAGE>
in its opinion constitute a breach of any law or be otherwise
actionable at the suit of any person;
28.4.4 be under any obligations other than those for which express
provision is made herein; or
28.4.5 be or be deemed to be a fiduciary for any other party hereto.
28.5 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Facility Agent, indemnify the Facility Agent against any and all costs,
claims, losses, expenses (including legal fees) and liabilities together
with any VAT thereon which the Facility Agent may incur, otherwise than
by reason of its own gross negligence or wilful misconduct, in acting in
its capacity as agent hereunder (other than any which have been
reimbursed by the Parent pursuant to Clause 23.1 (PARENT'S INDEMNITY)).
28.6 EXCLUSION OF LIABILITIES
Except in the case of gross negligence or wilful misconduct, none of the
Facility Agent and the Arrangers accepts any responsibility:
28.6.1 for the adequacy, accuracy and/or completeness of any
information supplied by the Facility Agent or the Arrangers,
by an Obligor or by any other person in connection with the
Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Finance Documents;
28.6.2 for the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Finance Documents; or
28.6.3 for the exercise of, or the failure to exercise, any
judgement, discretion or power given to any of them by or in
connection with the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents.
Accordingly, none of the Facility Agent and the Arrangers shall be under
any liability (whether in negligence or otherwise) in respect of such
matters, save in the case of gross negligence or wilful misconduct.
28.7 NO ACTIONS
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Facility Agent or
any/the Arranger any claim it might have against any of them in respect
of the matters referred to in Clause 28.6 (EXCLUSION OF LIABILITIES).
<PAGE>
28.8 BUSINESS WITH THE GROUP
The Facility Agent and each of the Arrangers may accept deposits from,
lend money to and generally engage in any kind of banking or other
business with any member of the Group.
28.9 RESIGNATION
The Facility Agent may resign its appointment hereunder at any time
without assigning any reason therefor by giving not less than thirty
days' prior notice to that effect to each of the other parties hereto,
PROVIDED THAT no such resignation shall be effective until a successor
for the Facility Agent is appointed in accordance with the succeeding
provisions of this Clause 28.
28.10 REMOVAL OF FACILITY AGENT
An Instructing Group may remove the Facility Agent from its role as
agent hereunder by giving notice to that effect to each of the other
parties hereto. Such removal shall take effect only when a successor to
the Facility Agent is appointed in accordance with the terms hereof.
28.11 SUCCESSOR FACILITY AGENT
If the Facility Agent gives notice of its resignation pursuant to Clause
28.9 (RESIGNATION) or it is removed pursuant to Clause 28.10 (REMOVAL OF
FACILITY AGENT) then any reputable and experienced bank or other
financial institution may be appointed as a successor to the Facility
Agent by an Instructing Group during the period of such notice but, if
no such successor is so appointed, the Facility Agent may appoint such a
successor itself.
28.12 RIGHTS AND OBLIGATIONS
If a successor to the Facility Agent is appointed under the provisions
of Clause 28.11 (SUCCESSOR FACILITY AGENT), then (a) the retiring or
departing Facility Agent shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the provisions of
this Clause 28 and (b) its successor and each of the other parties
hereto shall have the same rights and obligations amongst themselves as
they would have had if such successor had been a party hereto.
28.13 OWN RESPONSIBILITY
It is understood and agreed by each Bank that at all times it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigation into all risks arising under
or in connection with the Finance Documents including, but not limited
to:
28.13.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
28.13.2 the legality, validity, effectiveness, adequacy and
enforceability of the Finance Documents and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Finance Documents;
<PAGE>
28.13.3 whether such Bank has recourse, and the nature and extent of
that recourse, against an Obligor or any other person or any
of their respective assets under or in connection with the
Finance Documents, the transactions therein contemplated or
any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in
connection with the Finance Documents; and
28.13.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Facility
Agent or the Arrangers, an Obligor, or by any other person in
connection with the Finance Documents, the transactions
contemplated therein or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Finance Documents.
Accordingly, each Bank acknowledges to the Facility Agent and the
Arrangers that it has not relied on and will not hereafter rely on the
Facility Agent and the Arrangers or any of them in respect of any of
these matters.
28.14 BANKS' MANDATORY COST DETAILS
Each Bank will supply the Facility Agent with such information and in
such detail as the Facility Agent may require in order to calculate the
Mandatory Cost Rate in accordance with Schedule 11 (MANDATORY COSTS).
28.15 AGENCY DIVISION SEPARATE
In acting as agent hereunder for the Banks, the Facility Agent shall be
regarded as acting through its agency division which shall be treated as
a separate entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 28, any
information received by some other division or department of the
Facility Agent may be treated as confidential and shall not be regarded
as having been given to the Facility Agent's agency division.
29. ASSIGNMENTS AND TRANSFERS
29.1 BINDING AGREEMENT
The Finance Documents shall be binding upon and enure to the benefit of
each party hereto and its or any subsequent successors and Transferees.
29.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Finance Documents.
29.3 ASSIGNMENTS AND TRANSFERS BY BANKS
Any Bank may, at any time, assign all or any of its rights and benefits
under the Finance Documents or transfer in accordance with Clause 29.5
(TRANSFERS BY BANKS) all or any of its rights, benefits and obligations
under the Finance Documents to a bank or financial institution, PROVIDED
THAT (save in the case of any such assignment or transfer (a) to any
subsidiary or holding company, or to any subsidiary of any holding
company, of such Bank or (b) to any other Bank or (c) if an Event of
Default is
<PAGE>
continuing) no such assignment or transfer may be made without the prior
written consent of the Borrower.
29.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with 29.3 (ASSIGNMENTS AND TRANSFERS BY
BANKS), then, unless and until the assignee has delivered a notice to
the Facility Agent confirming in favour of the Facility Agent, the
Arrangers and the other Banks that it shall be under the same
obligations towards each of them as it would have been under if it had
been an original party hereto as a Bank (whereupon such assignee shall
become a party hereto as a "Bank"), the Facility Agent, the Arrangers
and the other Banks shall not be obliged to recognise such assignee as
having the rights against each of them which it would have had if it had
been such a party hereto.
29.5 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents as contemplated in Clause 29.3
(ASSIGNMENTS AND TRANSFERS BY BANKS), then such transfer may be effected
by the delivery to the Facility Agent of a duly completed Transfer
Certificate executed by such Bank and the relevant Transferee in which
event, on the later of the Transfer Date specified in such Transfer
Certificate and the fifth Business Day after (or such earlier Business
Day endorsed by the Facility Agent on such Transfer Certificate falling
on or after) the date of delivery of such Transfer Certificate to the
Facility Agent:
29.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations under the Finance Documents, each of the Obligors
and such Bank shall be released from further obligations
towards one another under the Finance Documents and their
respective rights against one another shall be cancelled (such
rights and obligations being referred to in this Clause 28.5
as "DISCHARGED RIGHTS AND OBLIGATIONS");
29.5.2 each of the Obligors and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights
and obligations only insofar as such Obligor and such
Transferee have assumed and/or acquired the same in place of
such Obligor and such Bank;
29.5.3 the Facility Agent, the Arrangers, such Transferee and the
other Banks shall acquire the same rights and benefits and
assume the same obligations between themselves as they would
have acquired and assumed had such Transferee been an original
party hereto as a Bank with the rights, benefits and/or
obligations acquired or assumed by it as a result of such
transfer and to that extent the Facility Agent, the Arrangers
and the relevant Bank shall each be released from further
obligations to each other under the Finance Documents; and
<PAGE>
29.5.4 such Transferee shall become a party hereto as a "Bank".
29.6 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause
29.4 (ASSIGNMENTS BY BANKS) or a transfer takes effect pursuant to
Clause 29.5 (TRANSFERS BY BANKS) the relevant assignee or Transferee
shall pay to the Facility Agent for its own account a fee of euro 1,000.
29.7 DISCLOSURE OF INFORMATION Any Bank may disclose to any person:
29.7.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations under the Finance Documents;
29.7.2 with (or through) whom such Bank enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, the Finance Documents or any Obligor; or
29.7.3 to whom information may be required to be disclosed by any
applicable law,
such information about any Obligor or the Group and the Finance
Documents as such Bank shall consider appropriate PROVIDED THAT, in
relation to sub-clauses 29.7.1 and 29.7.2, the person to whom such
information is to be given has entered into a Confidentiality
Undertaking.
29.8 NOTIFICATION
The Facility Agent shall within fourteen days of receiving a Transfer
Certificate notify the Parent and the other Banks of any assignment or
transfer completed pursuant to this Clause 29.
29.9 NO INCREASED COSTS
If, at any time, any Bank assigns or transfers any of its rights,
benefits and obligations hereunder and, at the time of such assignment
or transfer there arises an obligation on the part of an Obligor under
Clause 10 (TAXES) or Clause 12.1 (INCREASED COSTS) to pay to such Bank
or its assignee or Transferee any amount in excess of the amount it
would have then been obliged to pay but for the assignment or transfer,
then the Obligor shall not be obliged to pay the amount of such excess.
30. CALCULATIONS AND EVIDENCE OF DEBT
30.1 BASIS OF ACCRUAL
Any interest, commission or fee accruing hereunder will accrue from day
to day and is calculated on the basis of actual number of days elapsed
and a year of 360 days or in any case where market practice differs, in
accordance with market practice.
<PAGE>
30.2 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the Facility
Agent with a quotation required of it under the foregoing provisions of
this Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Facility
Agent, provided that, in relation to determining EURIBOR, this Clause
30.2 shall not apply if only one Reference Bank supplies a quotation.
30.3 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
30.4 CONTROL ACCOUNTS
The Facility Agent shall maintain on its books a control account or
accounts in which shall be recorded (a) the amount of any Advance or any
Unpaid Sum and each Bank's share therein, (b) the amount of all
principal, interest and other sums due or to become due from an Obligor
and each Bank's share therein and (c) the amount of any sum received or
recovered by the Facility Agent hereunder and each Bank's share therein.
30.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 30.3 (EVIDENCE OF DEBT) and Clause 30.4 (CONTROL ACCOUNTS) shall
be PRIMA FACIE evidence of the existence and amounts of the specified
obligations of the Obligors.
30.6 ROUNDING AND OTHER CONSEQUENTIAL CHANGES
30.6.1 Without prejudice and in addition to any method of conversion
or rounding prescribed by any EMU Legislation and without
prejudice to (a) the liabilities for indebtedness of the
Obligors to the Banks under or pursuant to the Finance
Documents or (b) the Available Facility, any reference in the
Finance Documents to a minimum amount (or an integral multiple
thereof) in a national currency of a Subsequent Participant to
be paid to or by the Facility Agent shall, immediately upon it
becoming a Subsequent Participant, be replaced by a reference
to such reasonably comparable and convenient amount (or an
integral multiple thereof) in the euro unit as the Facility
Agent may specify.
30.6.2 Save as expressly provided in this Clause 30.6, the Finance
Documents shall be subject to such reasonable changes of
construction as the Facility Agent may at the relevant time
specify to be appropriate to reflect the adoption of the euro
in any Participating Member State and any relevant market
conventions or practices relating to the euro.
PROVIDED THAT this Clause shall not reduce or increase any actual or
contingent liability arising under this Agreement.
<PAGE>
30.7 CERTIFICATES OF BANKS
A certificate of a Bank as to:
30.7.1 the amount by which a sum payable to it hereunder is to be
increased under Clause 10.1 (TAX GROSS-UP);
30.7.2 the amount for the time being required to indemnify it against
any such cost, payment or liability as is mentioned in Clause
10.2 (TAX INDEMNITY), Clause 12.1 (INCREASED COSTS) or Clause
23.1 (PARENT'S INDEMNITY); or
30.7.3 the amount of any credit, relief, remission or repayment as is
mentioned in Clause 11.3 (TAX CREDIT PAYMENT),
shall, in the absence of manifest error, be PRIMA FACIE evidence of the
existence and amounts of the specified obligations of the Obligors.
30.8 FACILITY AGENT'S CERTIFICATES
A certificate of the Facility Agent as to the amount at any time due
from a Borrower or the Parent hereunder or the amount which, but for any
of the obligations of such Borrower or the Parent hereunder being or
becoming void, voidable, unenforceable or ineffective, at any time would
have been due from such Borrower hereunder shall, in the absence of
manifest error, be conclusive for the purposes of Clause 19 (GUARANTEE
AND INDEMNITY).
31. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
31.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise thereof or the
exercise of any other right or remedy. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies
provided by law.
31.2 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction
shall in any way be affected or impaired thereby.
32. NOTICES
32.1 COMMUNICATIONS IN WRITING
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or letter.
<PAGE>
32.2 ADDRESSES
Any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or
document has, by fifteen days' written notice to the Facility Agent,
specified another address or fax number) be made or delivered to the
address or fax number:
32.2.1 in the case of the Obligors and the Facility Agent,
identified with its name below; and
32.2.2 in the case of each Bank, notified in writing to the Facility
Agent prior to the date hereof (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it
is a party as Transferee),
PROVIDED THAT not more than one address may be specified by each party
pursuant to this Clause 32.2 at any time. Any Bank with two Facility
Offices shall specify its main address and fax number for the purpose of
notices.
32.3 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to the Finance Documents shall:
32.3.1 if by way of fax, be deemed to have been received when
transmission has been completed; and
32.3.2 if by way of letter, be deemed to have been delivered when
left at the relevant address or, as the case may be, ten days
after being deposited in the post postage prepaid in an
envelope addressed to it at such address,
PROVIDED THAT any communication or document to be made or delivered to
the Facility Agent shall be effective only when received by its agency
division and then only if the same is expressly marked for the attention
of the department or officer identified with the Facility Agent's
signature below (or such other department or officer as the Facility
Agent shall from time to time specify for this purpose).
32.4 NOTIFICATION OF CHANGES
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 32.2 (ADDRESSES) or changing its own address
or fax number, the Facility Agent shall notify the other parties hereto
of such change.
32.5 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to the Finance Documents shall be in the English
language or accompanied by a translation thereof into English certified
(by an officer of the person making or delivering the same) as being a
true and accurate translation thereof.
32.6 DEEMED RECEIPT BY THE OBLIGORS
Any communication or document made or delivered to the Parent in
accordance with Clause 32.3 (DELIVERY) shall be deemed to have been made
or delivered to each of the Obligors.
<PAGE>
33. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
34. AMENDMENTS
34.1 AMENDMENTS
If the Facility Agent has the prior consent of an Instructing Group, the
Facility Agent and the Obligors may from time to time agree in writing
to amend the Finance Documents or to waive, prospectively or
retrospectively, any of the requirements of the Finance Document and any
amendments or waivers so agreed shall be binding on all the Finance
Parties, PROVIDED THAT no such waiver or amendment shall subject any
Finance Party hereto to any new or additional obligations without the
consent of such Finance Party.
34.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
34.2.1 Clause 27 (SHARING) or this Clause 34;
34.2.2 a change in the principal amount of or currency of any
Advance, or deferral of the Repayment Date;
34.2.3 a reduction in the Margin or the amount or deferral of any
payment of principal, interest, fees or commission payable;
34.2.4 a release of the Parent from any of its obligations set out
in Clause 19 (GUARANTEE AND INDEMNITY);
34.2.5 the definition of Instructing Group or Availability Period; or
34.2.6 any provision which expressly requires the consent or approval
of all the Banks,
shall not be made without the prior consent of all the Banks.
34.3 EXCEPTIONS
Notwithstanding any other provisions hereof, the Facility Agent shall
not be obliged to agree to any such amendment or waiver if the same
would:
34.3.1 amend or waive this Clause 34, Clause 21 (COSTS AND EXPENSES)
or Clause 28 (THE FACILITY AGENT, THE ARRANGERS AND THE
BANKS); or
34.3.2 otherwise amend or waive any of the Facility Agent's rights
hereunder or subject the Facility Agent or the Arrangers to
any additional obligations hereunder.
35. GOVERNING LAW
This Agreement is governed by English law.
<PAGE>
36. JURISDICTION
36.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any dispute
(a "DISPUTE") arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination of
this Agreement or the consequences of its nullity).
36.2 CONVENIENT FORUM
The parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes between them and, accordingly,
that they will not argue to the contrary.
36.3 NON-EXCLUSIVE JURISDICTION
This Clause 36 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 36.1 (ENGLISH COURTS), it does not
prevent any Finance Party from taking proceedings relating to a Dispute
("PROCEEDINGS") in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent Proceedings in
any number of jurisdictions.
36.4 SERVICE OF PROCESS
Each Obligor agrees that the documents which start any Proceedings and
any other documents required to be served in relation to those
Proceedings may be served on it at Nutricia Holdings Limited of
Newmarket Avenue, Whitehorse Business Park, Trowbridge, Wiltshire BA14
0XQ.
If any Obligor ceases to have a place of business in Great Britain or,
as the case may be, the appointment of the person mentioned in this
Clause 36.4 ceases to be effective, the relevant Obligor shall
immediately appoint another person in England to accept service of
process on its behalf in England. If an Obligor fails to do so (and such
failure continues for a period of not less than fourteen days), the
Facility Agent shall be entitled to appoint such a person by notice to
such Obligor. Nothing contained herein shall restrict the right to serve
process in any other manner allowed by law. This Clause 36.4 applies to
Proceedings in England and to Proceedings elsewhere.
37. BORROWERS' AGENT
Each Borrower irrevocably authorises and instructs the Borrowers' Agent
on its behalf as agent to give and receive all notices (including any
Notices of Drawdown) and to take all other action (including the giving
of consents or the signing of certificates which require to be given or
executed for the purpose of the Finance Documents and the acceptance of
any proposal) as may be necessary or desirable in connection with the
Facility or the Finance Documents. Each Borrower confirms that it will
be bound by any action taken by the Borrowers' Agent under or in
connection with the Facility or the Finance Documents.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
<PAGE>
SCHEDULE 1
THE ORIGINAL PARTIES
PART A
THE ORIGINAL BANKS
<TABLE>
<CAPTION>
BANK COMMITMENT
(EURO)
<S> <C>
Citibank, N.A. 350,000,000
Deutsche Bank AG 350,000,000
ING Bank N.V. 350,000,000
---------------------------
TOTAL EUR 1,050,000,000
</TABLE>
PART B
THE BORROWERS
<TABLE>
<CAPTION>
NAME OF BORROWER REGISTERED NO.
<S> <C>
Koninklijke Numico N.V. 27090619
Numico Nationaal B.V. 27128983
Nutricia International B.V. 27112523
Pharmafood B.V. 08020001
</TABLE>
PART C
THE GUARANTORS
<TABLE>
<CAPTION>
NAME OF GUARANTOR REGISTERED NO.
<S> <C>
Koninklijke Numico N.V. 27090619
Nutricia International B.V. 27112523
Numico Nationaal B.V. 27128983
Pharmafood B.V. 08020001
</TABLE>
<PAGE>
SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: ING Bank N.V.
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "CREDIT AGREEMENT") dated 2 June 2000 a euro term facility was
made available to a group of borrowers including Koninklijke Numico N.V. by a
group of banks on whose behalf ING Bank N.V. acted as agent in connection
therewith.
1. Terms defined in the Credit Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee
and Portion Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under
the heading "BANK'S PARTICIPATION IN THE FACILITY" and "ADVANCES"
accurately summarises its participation in the Credit Agreement and
the Interest Period of any existing Advances and (ii) requests the
Transferee to accept and procure the transfer by novation to the
Transferee of the Portion Transferred (specified in the schedule
hereto) of its Commitment and/or its participation in such Advance(s)
by counter-signing and delivering this Transfer Certificate to the
Facility Agent at its address for the service of notices specified in
the Credit Agreement.
3. The Transferee hereby requests the Facility Agent to accept this
Transfer Certificate as being delivered to the Facility Agent pursuant
to and for the purposes of Clause 29.5 (TRANSFERS BY BANKS) of the
Credit Agreement so as to take effect in accordance with the terms
thereof on the Transfer Date or on such later date as may be determined
in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Credit
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will not
hereafter rely on the Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of
any such information and further agrees that it has not relied and will
not rely on the Bank to assess or keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or
nature of the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Credit Agreement that it will perform in accordance with
their terms all those obligations which by the terms of the Finance
Documents will be assumed by it after delivery of this Transfer
Certificate to the Facility Agent and satisfaction of the conditions (if
any) subject to which this Transfer Certificate is expressed to take
effect.
<PAGE>
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any document
relating thereto and assumes no responsibility for the financial
condition of the Obligors or for the performance and observance by the
Obligors of any of its obligations under the Finance Documents or any
document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
7. The Bank hereby gives notice that nothing herein or in the Finance
Documents (or any document relating thereto) shall oblige the Bank to
(a) accept a re-transfer from the Transferee of the whole or any part of
its rights, benefits and/or obligations under the Finance Documents
transferred pursuant hereto or (b) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including the non-performance by an Obligor or any other
party to the Finance Documents (or any document relating thereto) of its
obligations under any such document. The Transferee hereby acknowledges
the absence of any such obligation as is referred to in (a) or (b)
above.
8. This Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in accordance
with English law.
THE SCHEDULE
<TABLE>
<S><C>
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation in the Facility:
Bank's Commitment Portion Transferred
5. Advance(s):
Amount of Bank's Participation Interest Period Portion Transferred
</TABLE>
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
<PAGE>
-------------------------------------------------------------------------------
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments
in euros:
Fax:
Telephone:
-------------------------------------------------------------------------------
* Details of the Bank's Available Commitment should not be completed after the
last day of the Availability Period.
<PAGE>
SCHEDULE 3
CONDITIONS PRECEDENT
1. In relation to each Obligor:
(a) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Obligor, of
the constitutional documents of such Obligor;
(b) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Obligor, of
a board resolution (including the supervising board, if
relevant) of such Obligor approving in the case of the Parent
and each Obligor the execution, delivery and performance of
the Finance Documents and the terms and conditions thereof and
in the case of the Parent only, also approving the Equity
Package and the Acquisition, the Offer Documents and the
Merger Agreement, and in each case authorising a named person
or persons to sign the Finance Documents and, if applicable,
Offer Documents, the Merger Agreement and any documents to be
delivered by such Obligor pursuant thereto;
(c) a certificate of an Authorised Signatory of such Obligor
setting out the names and signatures of the persons authorised
to sign, on behalf of such Obligor, the Finance Documents and
any documents to be delivered by such Obligor pursuant
thereto; and
(d) a certificate of an Authorised Signatory of such Obligor
confirming that utilisation of the Facility would not breach
any restriction of its borrowing powers.
2. A copy, certified a true copy by or on behalf of each Obligor, of each
such law, decree, consent, licence, approval, registration or
declaration as is, in the opinion of counsel to the Banks, necessary to
render this Agreement legal, valid, binding and enforceable, to make
this Agreement admissible in evidence in each Obligor's jurisdiction of
incorporation and to enable each Obligor to perform its obligations
hereunder.
3. An opinion of the General Counsel to each Obligor incorporated in a
jurisdiction other than England and Wales satisfactory in form and
substance to the Facility Agent and in substantially the form
distributed to the Banks prior to the signing of this Agreement.
4. Opinions of Clifford Chance, solicitors to the Facility Agent, in
substantially the forms distributed to the Banks prior to the signing of
this Agreement.
5. A copy, certified a true copy by an Authorised Signatory of the Parent,
of the latest annual audited consolidated accounts of the Group and the
Parent's unconsolidated accounts.
<PAGE>
6. Evidence that the party specified in Clause 36.4 (SERVICE OF PROCESS)
has agreed to act as the agent of each Obligor for the service of
process in England.
7. A certified copy of the following Offer Documents and the Press Release:
(a) Offer to Purchase;
(b) Letter of Transmittal to Tender Shares;
(c) Notice of Offer to Purchase for cash all outstanding shares;
(d) Notice of Guaranteed delivery;
(e) Schedule 14D-9 (SEC filing);
(f) Agreement and Plan of Merger (Merger Agreement); and
(g) Press Release.
8. Certificate from a director of the Parent and Nutricia certifying:
(a) the Minimum Condition (as defined in the Merger Agreement) has
been fulfilled and sufficient common stock of Rexall Sundown
has been tendered in the Offer to enable Nutricia to effect
the Merger without requiring any affirmative votes from
public shareholders of Rexall Sundown;
(b) that to their knowledge, neither the Parent nor Nutricia have
waived or varied any of the terms described in Clause 17.13 of
the Credit Agreement;
(c) that the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 has elapsed;
(d) that legal advice has been taken from legal counsel in all
relevant jurisdictions, and on the basis of such advice, all
governmental filings, approvals, consents or tax rulings which
are required to be obtained by the Parent or Nutricia prior to
accepting the tendered shares have been obtained, except where
the failure to obtain such filings, approvals or tax rulings
would not have a Material Adverse Effect on the Parent's or
Nutricia's ability to accept and retain such shares; and
9. The report of the depositary agent indicating the number of shares of
Rexall Sundown which have been tendered to and accepted by Nutricia.
10. Receipt simultaneously of the proceeds of the Senior Loan in an amount
at least equal to the amount required by Nutricia, together with funds
available from other sources, to fund the initial acquisition cost of
the common stock of Rexall Sundown.
<PAGE>
SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Insert name of Borrower]
To: ING Bank NV
Dated:
Dear Sirs,
1. We refer to the agreement (the "CREDIT AGREEMENT") dated 2 June 2000 and
made between a group of borrowers including Koninklijke Numico N.V., ING
Bank NV as agent and the financial institutions named therein as Banks.
Terms defined in the Credit Agreement shall have the same meaning in
this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Credit Agreement and on
[date of proposed Advance], we wish to borrow an Advance having an
amount of euro [-] upon the terms and subject to the conditions
contained therein.
[We would like this Advance to have a first Interest Period of [ ]
duration.]
4. [Payment Directions].
5. We confirm that, at the date hereof, the Repeated Representations are
true in all material respects and no Event of Default is continuing.
6. The proceeds of this drawdown should be credited to [insert account details].
Yours faithfully
.............................
Authorised Signatory
for and on behalf of
[Name of Borrower]
<PAGE>
SCHEDULE 5
EXISTING ENCUMBRANCES
<TABLE>
<S> <C>
NAME OF OBLIGOR DETAILS OF ENCUMBRANCE
Koninklijke Numico N.V. Those Encumbrances as set forth in the Numico
Annual Report for the year ended 31 December 1999.
</TABLE>
<PAGE>
SCHEDULE 6
MANDATORY COSTS
1. The Mandatory Cost Rate is an addition to the interest rate to
compensate Banks for the cost of compliance with the requirements of the
Financial Services Authority (or, in either case, any other authority
which replaces all or any of its functions).
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "ADDITIONAL COSTS RATE") for each Bank, in accordance with
paragraph 3 below. The Mandatory Cost Rate will be calculated by the
Facility Agent as a weighted average of the Banks' additional costs
rates (weighted in proportion to the percentage participation of each
Bank in the relevant Advance) and will be expressed as a percentage rate
per annum.
3. The additional costs rate for each Bank lending from a Facility Office
in the United Kingdom will be calculated by the Facility Agent as
follows:
E x 0.01
------ per cent. per annum.
300
Where:
E is the rate of charge payable by that Bank to the Financial
Services Authority pursuant to the Fees Regulations (but, for
this purpose, ignoring any minimum fee required pursuant to
the Fees Regulations) and expressed in pounds per
L1,000,000 of the Fee Base of that Bank.
4. For the purposes of this Schedule:
(a) "FEE REGULATIONS" means the Banking Supervision (Fees)
Regulations 1999 or such other law as may be in force from
time to time in respect of the payment of fees for banking
supervision; and
(b) "FEE BASE" has the meaning given to it, and will be calculated
in accordance with, the Fees Regulations.
5. Each Bank shall supply any information required by the Facility Agent
for the purpose of calculating the additional costs rate. In particular,
but without limitation, each Bank shall supply the following information
in writing on or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) such other information that the Facility Agent may reasonably
require for such purpose.
Each Bank shall promptly notify the Facility Agent in writing of any
change to the information provided by it pursuant to this paragraph.
<PAGE>
6. The percentages or rates of charge of each Bank for the purpose of
paragraph 3 and E above shall be determined by the Facility Agent based
upon the information supplied to it pursuant to paragraph 5 above and on
the assumption that, unless a Bank notifies the Facility Agent to the
contrary, each Bank's obligations in relation to the Fee Regulations are
the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
7. The Facility Agent shall have no liability to any person if such
determination results in an additional costs rate which over or under
compensates any Bank and shall be entitled to assume that the
information provided by any Bank pursuant to paragraph 6 above is true
and correct in all respects.
8. The Facility Agent shall distribute the additional amounts received
pursuant to the Mandatory Cost Rate to the Banks on the basis of the
additional costs rate for each Bank, in accordance with the above
paragraphs and based on the information provided by each Bank pursuant
to paragraph 6 above.
9. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost Rate, an additional costs rate
or any amount payable to a Bank shall, in the absence of manifest error,
be conclusive and binding on all of the parties hereto.
10. The Facility Agent may from time to time, after consultation with the
Parent and the Banks, determine and notify to all parties any amendments
or variations which are required to be made to any of the formulae set
out above in order to comply with any change in law or any requirements
from time to time imposed by the Bank of England or the Financial
Services Authority (or, in any case, any other authority which replaces
all or any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all the parties
hereto.
<PAGE>
SIGNATURES
THE PARENT
KONINKLIJKE NUMICO N.V.
By: /s/ J.H.C. VAN DER VEN
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
THE BORROWERS
KONINKLIJKE NUMICO N.V.
By: /s/ J.H.C. VAN DER VEN
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
NUMICO NATIONAAL B.V.
By: /s/ J.H.C. VAN DER VEN
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
<PAGE>
NUTRICIA INTERNATIONAL B.V.
By: /s/ J.H.C. VAN DER VEN
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
PHARMAFOOD B.V.
By: /s/ J.H.C. VAN DER VEN
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
THE GUARANTORS
KONINKLIJKE NUMICO N.V.
By: /s/ J.H.C. VAN DER VEN
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
<PAGE>
NUMICO NATIONAAL B.V.
By: /s/ J.H.C. VAN DER VEN
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
NUTRICIA INTERNATIONAL B.V.
By: /s/ J.H.C. VAN DER VEN
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
PHARMAFOOD B.V.
By: /s/ J.H.C. VAN DER VEN
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
<PAGE>
THE ARRANGERS
DEUTSCHE BANK AG
By: /s/ GOETZ LAUE
/s/ BIRTHE BRUHN-LEON
Address: Bockenheimer Landstr. 42
D-60323 Frankfurt/Main
Germany
Fax: +(49) 69 910-38793
Attention: Director, Syndicated Loans
<PAGE>
ING BANK N.V.
By: /s/ JOHN STAFFORD
Address: Bijlmerplein 888
P.O. Box 1800
1000 BV Amsterdam
The Netherlands
Fax: +31 (0)20 652 2030
Attention: N.J. Klein
<PAGE>
SALOMON BROTHERS INTERNATIONAL LIMITED
By: /s/ JOHN STAFFORD
Address: 111 Buckingham Palace Road
Level 4, Core 1
London SW1 0SB
UK
Fax: +44 (0)20 7681 1507
Attention:
<PAGE>
THE FACILITY AGENT
ING BANK NV
By: /s/ JOHN STAFFORD
Address: Bijlmerplein 888
P.O. Box 1800
1000 BV Amsterdam
The Netherlands
Fax: +31 (0)20 576 8782
Attention: Ms. Johanna ten Veen/HE 0306
<PAGE>
THE ORIGINAL BANKS
CITIBANK, N.A.
By: /s/ JOHN STAFFORD
Address: 336 Strand
London WC2R 1HB
UK
Fax: +44 (0)20 7500 0655
Attention:
<PAGE>
DEUTSCHE BANK AG, AMSTERDAM BRANCH
By: /s/ SUSANNE BALTES
/s/ JOS VAN HELDEN
Address: Herengracht 450-454
1017 CA Amsterdam
The Netherlands
Fax: 00 31 20 620 8389
Attention: Mrs Susanne Baltes
<PAGE>
ING BANK N.V.
By: /s/ JOHN STAFFORD
Address: Bijlmerplein 888
P.O. Box 1800
1000 BV Amsterdam
The Netherlands
Fax: +31 (0)20 565 1020
Attention: D. I. Hiel/HE 0109
