EXECUTION COPY
DATED 2 JUNE 2000
KONINKLIJKE NUMICO N.V.
AS PARENT
DEUTSCHE BANK AG
FORTIS BANK N.V.
ING BANK N.V.
RABOBANK INTERNATIONAL
AND
SALOMON BROTHERS INTERNATIONAL LIMITED
AS ARRANGERS
ING BANK N.V.
AS AGENT
AND
OTHERS
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EURO 1,000,000,000 and US$1,450,000,000
MULTICURRENCY CREDIT AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..................................................................1
1. The Facilities.................................................................................17
1. Utilisation Of The Term Facilities.............................................................19
1. Multicurrency Option...........................................................................21
1. Interest Periods For Term Advances.............................................................23
1. Payment And Calculation Of Interest On Term Advances...........................................24
1. Utilisation Of The Revolving Facility..........................................................25
1. Payment And Calculation Of Interest On Revolving Advances......................................26
1. Market Disruption And Alternative Interest Rates...............................................26
1. Notification...................................................................................28
1. Repayment Of The Term Facilities...............................................................28
1. Repayment Of The Revolving Facility............................................................29
1. Cancellation And Prepayment....................................................................29
1. Taxes..........................................................................................32
1. Tax Receipts...................................................................................33
1. Increased Costs................................................................................34
1. Illegality.....................................................................................35
1. Mitigation.....................................................................................36
1. Representations................................................................................36
1. Financial Information..........................................................................40
1. Financial Condition............................................................................42
1. Covenants......................................................................................45
1. Events Of Default..............................................................................49
1. Guarantee And Indemnity........................................................................52
1. Commitment Commission And Fees.................................................................54
1. Costs And Expenses.............................................................................55
1. Default Interest And Break Costs...............................................................56
1. Parent's Indemnities...........................................................................57
1. Currency Of Account And Payment................................................................59
1. Payments.......................................................................................59
1. Set-Off........................................................................................61
1. Sharing........................................................................................62
1. The Agent, The Arrangers And The Banks.........................................................63
1. Assignments And Transfers......................................................................67
1. Additional Borrowers...........................................................................70
1. Additional Guarantors..........................................................................70
1. Calculations And Evidence Of Debt..............................................................71
1. Remedies And Waivers, Partial Invalidity.......................................................73
1. Notices........................................................................................73
1. Counterparts...................................................................................74
1. Amendments.....................................................................................74
1. Governing Law..................................................................................75
1. Jurisdiction...................................................................................75
1. Borrowers' Agent...............................................................................76
Schedule 1 THE ORIGINAL PARTIES.............................................................77
Part A The Original Banks...............................................................77
Part A The Borrowers....................................................................77
Part A The Guarantors...................................................................78
Schedule 1 FORM OF TRANSFER CERTIFICATE.....................................................79
Schedule 1 CONDITIONS PRECEDENT.............................................................82
Schedule 1 NOTICE OF DRAWDOWN...............................................................85
Schedule 1 EXISTING ENCUMBRANCES............................................................87
Schedule 1 FORM OF COMPLIANCE CERTIFICATE...................................................88
Schedule 1 FORM OF BORROWER ACCESSION MEMORANDUM............................................89
Schedule 8 FORM OF GUARANTOR ACCESSION MEMORANDUM...........................................91
Schedule 9 ADDITIONAL CONDITIONS PRECEDENT..................................................93
Schedule 10 FORM OF RESIGNATION NOTICE.......................................................95
Schedule 11 MANDATORY COSTS..................................................................96
Schedule 12 FORM OF SYNDICATION AGREEMENT....................................................98
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 "ORIGINAL BORROWERS"
and "ORIGINAL 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 "ORIGINAL
GUARANTORS" and "ORIGINAL GUARANTOR" means any one of them);
(4) DEUTSCHE BANK AG, FORTIS BANK N.V., ING BANK N.V., RABOBANK
INTERNATIONAL AND SALOMON BROTHERS INTERNATIONAL LIMITED as arrangers of
the Facilities (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.
"ADDITIONAL BORROWER" means any company which has become an Additional
Borrower in accordance with Clause 35 (ADDITIONAL BORROWERS).
"ADDITIONAL GUARANTOR" means any company which has become an Additional
Guarantor in accordance with Clause 36 (ADDITIONAL GUARANTORS).
"ADVANCE" means a Revolving Advance, a Term A Advance or a Term B
Advance.
"AUTHORISED SIGNATORY" means, in relation to an Obligor or proposed
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 or proposed Obligor setting
out the name and signature of such person and confirming such person's
authority to act.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time, the
aggregate of its Available Term A Commitment, its Available Term B
Commitment and its Available Revolving Commitment.
"AVAILABLE REVOLVING COMMITMENT" means, in relation to a Bank at any
time and save as otherwise provided herein, its Revolving Commitment at
such time LESS its share of the Dollar Amount of Revolving Advances
which are then outstanding PROVIDED THAT such amount shall not be less
than zero.
"AVAILABLE REVOLVING FACILITY" means, at any time, the aggregate amount
of the Available Revolving Commitments adjusted, in the case of any
proposed drawdown, so as to take into account:
(a) any reduction in the Revolving Commitment of a Bank pursuant
to the terms hereof;
(b) any Revolving Advance which, pursuant to any other drawdown,
is to be made; and
(c) any Revolving Advance which is due to be repaid,
on or before the proposed drawdown date.
"AVAILABLE TERM COMMITMENT" means the Available Term A Commitment and
the Available Term B Commitment.
"AVAILABLE TERM A COMMITMENT" means, in relation to a Bank at any time
and save as otherwise provided herein, its Term A Commitment at such
time LESS the aggregate of its share of the amount of the Term A
Advances which are then outstanding.
"AVAILABLE TERM B COMMITMENT" means, in relation to a Bank at any time
and save as otherwise provided herein, its Term B Commitment at such
time LESS the aggregate of its share of the Dollar Amount of the Term B
Advances which are then outstanding.
"AVAILABLE TERM FACILITIES" means the Available Term A Facility and the
Available Term B Facility.
"AVAILABLE TERM A FACILITY" means, at any time, the aggregate amount of
the Available Term A Commitment adjusted, in the case of any proposed
drawdown, so as to take into account any reduction in the Term A
Commitment of a Bank on or before the proposed drawdown date pursuant to
the terms hereof.
"AVAILABLE TERM B FACILITY" means, at any time, the aggregate amount of
the Available Term B Commitment adjusted, in the case of any proposed
drawdown, so as to take into account any reduction in the Term B
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 34.3
(ASSIGNMENTS AND TRANSFERS BY BANKS), Clause 34.4 (ASSIGNMENTS
BY BANKS) or Clause 34.5 (TRANSFERS BY BANKS),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"BORROWERS" means each of the Original Borrowers and each Additional
Borrower, PROVIDED THAT such company has not been released from its
rights and obligations hereunder in accordance with Clause 35.3
(RESIGNATION OF A BORROWER).
"BORROWERS' AGENT" means the Parent as agent for the Borrowers in
accordance with Clause 44 (BORROWERS' AGENT).
"BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 7 (FORM OF BORROWER ACCESSION MEMORANDUM).
"BRIDGE LOAN" means the loan in an amount of at least euro 1,050,000,000
made available by certain financial institutions to certain of the
Borrowers pursuant to a bridge facility agreement dated on or about the
date hereof.
"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:
(a) (in relation to any date for payment or purchase of a sum
denominated in a currency other than the euro) the principal
financial centre of the country of such currency; and
(b) (in relation to any date for payment or purchase of a sum
denominated in the Euro) 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, the aggregate of
its Term A Commitment, its Term B Commitment and its Revolving
Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 6 (FORM OF COMPLIANCE CERTIFICATE).
"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 43 (JURISDICTION).
"DOLLAR AMOUNT" means:
(a) in relation to a Term B Advance or a Revolving Advance, its
Original Dollar Amount as reduced by the proportion (if any)
of such Advance which has been repaid; and
(b) in relation to the Term B Loan or a Revolving Loan, the
aggregate of the Dollar Amounts of the outstanding Term B
Advances or Revolving Advances (as the case may be).
"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.
"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 23
(EVENTS OF DEFAULT).
"EXISTING AMOUNT" means, in relation to any Term B Advance and any two
successive Interest Periods relating thereto, the amount of such Term B
Advance at the beginning of the last day of the first of those Interest
Periods LESS any part thereof falling to be repaid on such day.
"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.
"FACILITIES" means the Term A Facility, the Term B Facility and the
Revolving Facility.
"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.
"FINAL MATURITY DATE" means the earlier of 2 June 2005 or the date which
is at least 3 months prior to the final maturity date of the New
Convertible Bonds.
"FINANCE DOCUMENTS" means this Agreement, any Borrower Accession
Memorandum, the Syndication Agreement, any fee letter delivered pursuant
to Clause 25 (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) all indebtedness pursuant to any issue of shares which are
expressed to be redeemable before the Revolving Termination
Date;
(h) 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.
"GROUP" means the Parent and its subsidiaries for the time being.
"GUARANTOR ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 8 (FORM OF GUARANTOR ACCESSION MEMORANDUM).
"GUARANTORS" means each of the Original Guarantors and each Additional
Guarantor.
"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 5.1 (INTEREST
PERIODS); and
(b) in relation to an Unpaid Sum, any of those periods mentioned
in Clause 27.1 (DEFAULT INTEREST PERIODS).
"LIBOR" means, in relation to any amount to be advanced to, or owing by,
an Obligor under the Finance Documents 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 British Bankers Association Interest Settlement
Rate for the currency of the relevant amount (being currently
"3740" or, as the case may be, "3750") for such period as of
11.00 a.m. 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 the
British Bankers Association Interest Settlement Rate for such
currency as the Facility Agent, after consultation with the
Banks and the Borrowers' Agent, shall select; or
(b) if no quotation for the relevant currency and 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 London
interbank market deposits in the currency of such amount and
for such period as of 11.00 a.m. on the Quotation Date for
such period.
"LMA" means the Loan Market Association.
"LOAN" means, at any time, the aggregate of the Term A Loan, the Term B
Loan and the Revolving Loan.
"MANDATORY COST RATE" means the rate determined in accordance with
Schedule 11 (MANDATORY COSTS).
"MARGIN" means in relation to the Facilities, 0.75% per annum for the
period commencing from the Closing Date and ending on the later of three
months after the Closing Date and the date upon which the Equity Package
has been completed and 0.55% per annum thereafter, PROVIDED THAT,
(starting with the audited financial statements of the Parent on a
consolidated basis or statements of the Group for the financial year
ending 31 December 2000), the Margin will be subject to revision (for
the avoidance of doubt, by way of an increase as well as a decrease) if
the Total Senior
Net Debt to EBITDA ratio (tested in accordance with Clause 20.5
(COMPLIANCE CERTIFICATES) on a 12 month rolling basis) for any Relevant
Period is:
(i) equal to or less than 3.00:1 but greater than 2.50:1, the
Margin shall be 0.50% per annum; or
(ii) equal to or less than 2.50:1, the Margin shall be 0.40% per
annum,
(and any reduction or increase in the Margin shall take effect in
relation to any outstanding Advance with effect from, or Advance made on
or after, the date falling five Business Days after receipt by the
Facility Agent of the Compliance Certificate for such Relevant Period
pursuant to Clause 20 (FINANCIAL INFORMATION)) PROVIDED THAT if at any
time there is an Event of Default which is continuing then the Margin
shall revert to 0.75% per annum for such time. For the purpose of
determining the Margin, "TOTAL SENIOR NET DEBT", "EBITDA" and "RELEVANT
PERIOD" shall be determined in accordance with Clause 21.2 (FINANCIAL
DEFINITIONS).
"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 Compliance Certificate executed by the
Parent's auditors and/or the latest 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 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 AMOUNT" means, in relation to any Term B Advance and any two
successive Interest Periods relating thereto, the amount of such Term B
Advance at the beginning of the second of those Interest Periods, as
determined in accordance with Clause 4.3 (AMOUNTS OF ADVANCES).
"NEW CONVERTIBLE BONDS" means euro denominated convertible subordinated
bonds due at least three months after the Revolving Termination Date
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 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.
"OPTIONAL CURRENCY" means:
(i) euros; and
(ii) any other currency (except dollars) which has been previously
approved in writing by the Facility Agent (acting on the
instructions of all Banks) as an optional currency for the
purpose of any drawdown, or denomination of any Advance during
an Interest Period relating thereto, at least three Business
Days prior to delivery of the Notice of Drawdown for such
Advance or the request under Clause 4.1 (BORROWER'S REQUEST
FOR OPTIONAL CURRENCY) PROVIDED THAT the Optional Currencies
available for the Revolving Facility shall be limited to euros
and pounds sterling.
"ORIGINAL DOLLAR AMOUNT" means:
(a) in relation to a Term B Advance,
(i) where such Term B Advance came into existence as a
result of a drawing under the Term B Facility, if the
drawing is in dollars the amount specified as such in
the Notice of Drawdown relating thereto, and if the
drawing is in an Optional Currency, the equivalent of
the relevant amount in dollars as the same may be
reduced pursuant to Clause 3.4 (REDUCTION OF AVAILABLE
TERM B COMMITMENT);
(ii) where such Term B Advance came into existence upon the
consolidation of two or more Term B Advances, the
aggregate of the Dollar Amounts of the Term B Advances
so consolidated; and
(iii) where such Term B Advance came into existence upon the
division of a Term B Advance, the amount specified as
such by the relevant Borrower pursuant to Clause 5.4
(DIVISION OF TERM ADVANCES); and
(b) in relation to a Revolving Advance, if the drawing is in
dollars the amount specified in the Notice of Drawdown
relating thereto, and if the drawing is in an Optional
Currency, the equivalent of that amount in dollars, as the
same may be reduced pursuant to Clause 7.4 (REDUCTION OF
AVAILABLE REVOLVING COMMITMENT).
"ORIGINAL OBLIGORS" means the Original Borrowers, Original Guarantors
and the Parent and "ORIGINAL OBLIGOR" means any of them.
"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;
(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 23 (EVENTS OF DEFAULT) but which has not become an
Event of Default because a period has not elapsed, a notice has not been
given or a determination has not been made in each case as specified in
Clause 23 (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 relevant
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.
"RELEVANT PERIOD" has the meaning set forth in Clause 21.2 (FINANCIAL
DEFINITIONS).
"REPAYMENT DATE" means, in relation to any Revolving Advance, the last
day of the Term thereof.
"REPEATED REPRESENTATIONS" means each of the representations set out in
Clause 19.1 (LEGAL STATUS) to Clause 19.6 (BORROWING LIMIT), Clause
19.19 (LICENCES AND CONSENTS) and Clause 19.21 (OWNERSHIP OF BORROWERS).
"RESIGNATION NOTICE" means a notice substantially in the form set out in
Schedule 9 (FORM OF RESIGNATION NOTICE).
"REVOLVING ADVANCE" means an advance made or to be made by the Banks
under the Revolving Facility.
"REVOLVING COMMITMENT" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading "REVOLVING COMMITMENT" in Part A of Schedule 1 (THE ORIGINAL
BANKS).
"REVOLVING FACILITY" means the multicurrency revolving loan facility
granted to the Borrowers in this Agreement.
"REVOLVING LOAN" means, at any time, the aggregate principal amount of
the outstanding Revolving Advances.
"REVOLVING TERMINATION DATE" means the earlier of: (a) the day which is
60 months after the date hereof subject to the prior cancellation of the
Revolving Facility in accordance with the terms of this Agreement and
(b) the day which is 3 months prior to the maturity date for the New
Convertible Bonds.
"REXALL SUNDOWN" means Rexall Sundown, Inc., a Florida corporation.
"ROLLOVER ADVANCE" means a Revolving Advance which is used to refinance
a maturing Revolving Advance and which is in the same or a lesser amount
and the same
currency as such maturing Revolving Advance and is to be drawn on the
day such maturing Revolving Advance is to be repaid.
"SUBSEQUENT PARTICIPANT" means a member state that adopts the euro as
its lawful currency after 1 January 1999.
"SYNDICATION AGREEMENT" means the syndication agreement substantially in
the form set out in Schedule 12 (FORM OF SYNDICATION AGREEMENT).
"SYNDICATION DATE" means the earlier of:
(a) the date that the Facility Agent notifies the Parent and the
Finance Parties that primary syndication of the Facilities has
been completed; and
(b) 31 December 2000.
"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.
"TERM" means, save as otherwise provided herein, in relation to any
Revolving Advance, the period for which such Revolving Advance is
borrowed, as specified in the Notice of Drawdown relating thereto.
"TERM ADVANCE" means a Term A Advance or a Term B Advance.
"TERM A 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 Term A Facility.
"TERM A AVAILABILITY PERIOD" means, in relation to the Term A Facility,
the period from and including the date hereof to and including the
earlier of (a) the day which is five months after the date hereof and
(b) the first Business Day on which the Available Term A Commitment of
each of the Banks is zero.
"TERM A COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name under the
heading "TERM A COMMITMENT" in Part A of Schedule 1 (THE ORIGINAL
BANKS).
"TERM A FACILITY" means the euro term loan facility granted to the
Borrowers in this Agreement.
"TERM A LOAN" means, at any time, the aggregate principal amount of
outstanding Term A Advances.
"TERM A REPAYMENT DATE" means the date which is 364 days after the date
hereof or such later date as may be determined in accordance with the
provisions of Clause 3.5 (EXTENSION OF TERM A FACILITY) PROVIDED THAT if
such date is not a Business Day, it shall be deemed to be the preceding
Business Day.
"TERM B 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 Term B Facility.
"TERM B AVAILABILITY PERIOD" means, in relation to the Term B Facility,
the period from and including the date hereof to and including the
earlier of (a) the day which is five months after the date hereof and
(b) the first Business Day on which the Available Term B Commitment of
each of the Banks is zero.
"TERM B COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name under the
heading "TERM B COMMITMENT" in Part A of Schedule 1 (THE ORIGINAL
BANKS).
"TERM B FACILITY" means the multicurrency term loan facility granted to
the Borrowers in this Agreement.
"TERM B LOAN" means, at any time, the aggregate principal amount of
outstanding Term B Advances.
"TERM B REPAYMENT DATE" means each of the dates specified in Clause 11.2
(REPAYMENT OF TERM B FACILITY) PROVIDED THAT if such date is not a
Business Day, it shall be deemed to be the preceding Business Day.
"TERM FACILITIES" means the Term A Facility and the Term B Facility.
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
"TOTAL NET DEBT" means Total Senior Net Debt, but including the
principal face amount of the Convertible Bonds and all subordinated
debt.
"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 34.3 (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 34.5 (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 27.1 (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;
"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;
the "RELEVANT INTERBANK MARKET" is a reference to:
(a) in relation to the euro, the European interbank market; or
(b) in relation to any other currency, the London interbank
market;
the "RELEVANT INTERBANK RATE" is a reference to:
(a) in relation to the euro, EURIBOR; or
(b) in relation to any other currency, LIBOR;
"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.
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
1.3.1 "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.
1.3.2 "$" and "DOLLARS" denote lawful currency of the United States
of America.
1.3.3 "POUNDS STERLING" denotes lawful currency of the United
Kingdom of Great Britain and Northern Ireland.
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.
2. THE FACILITIES
2.1 GRANT OF THE FACILITIES
The Banks grant to the Borrowers, upon the terms and subject to the
conditions hereof:
2.1.1 a 364 day extendable euro A term loan facility in an
aggregate amount of euro 1,000,000,000;
2.1.2 a multicurrency B term loan facility in an aggregate amount of
$1,150,000,000 or its equivalent from time to time in Optional
Currencies; and
2.1.3 a multicurrency revolving loan facility in an aggregate amount
of $300,000,000 or its equivalent from time to time in euros
and pounds sterling.
2.2 PURPOSE AND APPLICATION
The Facilities are intended for the following purposes:
2.2.1 to finance the Acquisition;
2.2.2 to refinance existing indebtedness of the Parent and its
subsidiaries and Rexall Sundown and its subsidiaries; and
2.2.3 for general corporate purposes (including, but not limited
to, the refinancing of the Dutch operating subsidiaries of
the Parent),
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).
2.6 SYNDICATION
2.6.1 The parties confirm that, at the date of this Agreement, the
Facilities are being made available by the relevant Original
Banks with the intention (but not the obligation) that the
Arrangers should co-ordinate the primary syndication of the
Facilities ("SYNDICATION").
2.6.2 Prior to the Syndication Date, no Bank may assign or transfer,
or deliver a Transfer Certificate in respect of, all or any
part of its rights or obligations under any Finance Document
without the prior consent of the Arrangers.
2.6.3 Each Obligor acknowledges that Syndication will take place and
undertakes to assist and co-operate with the Arrangers in
Syndication until the Syndication Date in such manner and to
such extent as the Arrangers may from time to time reasonably
request including, without limitation, by:
(a) selecting co-terminous Interest Periods and Terms in
relation to Advances having a duration selected by the
Agent, but not longer than one month, in respect of all
Advances until the Syndication Date; and
(b) entering into the Syndication Agreement with proposed
new Banks (incorporating any minor amendments to the
Finance Documents as may be reasonably requested by the
proposed new Banks and agreed to by the Arrangers (in
consultation with the Parent), but nothing in this
sub-clause 2.6.3(b) will require the Parent to agree to
any amendment which may prejudice any Obligor in any
way).
3. UTILISATION OF THE TERM FACILITIES
3.1 DRAWDOWN CONDITIONS FOR TERM A ADVANCES
A Term A 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 Term A Advance) before the proposed date for the
making of such Term A 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 Term A Advance is a
Business Day within the Term A Availability Period;
3.1.3 the proposed amount of such Term A Advance is (a) (if less
than the Available Term A Facility) an amount not less than
euro 100,000,000 and an integral multiple thereof or (b) equal
to the amount of the Available Term A Facility;
3.1.4 there would not, immediately after the making of such Term A
Advance, be more than 3 Term A Advances outstanding; and
3.1.5 on and as of the proposed date for the making of such Term A
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 DRAWDOWN CONDITIONS FOR TERM B ADVANCES
A Term B Advance (which may be in dollars or an Optional Currency) will
be made by the Banks to a Borrower if:
3.2.1 not later than 10.00 a.m. (Amsterdam time) on the fourth
Business Day (or second Business Day with regard to the
initial Term B Advance) before the proposed date for the
making of such Term B Advance, the Facility Agent has received
a completed Notice of Drawdown from such Borrower;
3.2.2 the proposed date for the making of such Term B Advance is a
Business Day within the Term B Availability Period;
3.2.3 the proposed amount and currency of such Term B Advance is (a)
(if less than the Available Term B Facility) an amount not
less than US$100,000,000 and an integral multiple of
US$50,000,000 (or if the currency selected is an Optional
Currency, its equivalent) or (b) equal to the amount of the
Available Term B Facility;
3.2.4 there would not, immediately after the making of such Term B
Advance, be more than 3 Term B Advances outstanding; and
3.2.5 on and as of the proposed date for the making of such Term B
Advance (a) no Event of Default or Potential Event of Default
is continuing and (b) the Repeated Representations are true in
all material respects.
3.3 EACH BANK'S PARTICIPATION IN TERM ADVANCES
Each Bank will participate through its Facility Office in each Term
Advance made pursuant to Clause 3.1 (DRAWDOWN CONDITIONS FOR TERM A
ADVANCES) and Clause 3.2 (DRAWDOWN CONDITIONS FOR TERM B ADVANCES) in
the proportion borne by its Available Term Commitment to the Available
Term Facilities immediately prior to the making of that Term Advance.
3.4 REDUCTION OF AVAILABLE TERM COMMITMENT
If a Bank's Available Term Commitment is reduced in accordance with the
terms hereof after the Facility Agent has received the Notice of
Drawdown for a Term Advance and such reduction was not taken into
account in the Available Term Facilities, then both the amount of that
Term A Advance or, as the case may be, the Original Dollar Amount of
that Term B Advance shall be reduced accordingly.
3.5 EXTENSION OF TERM A FACILITY
The Parent shall be entitled to request one extension of the Term A
Facility for a period of 364 days by giving notice to the Facility Agent
(an "EXTENSION REQUEST") not later than ten days before the Term A
Repayment Date. The Extension Request shall be made in writing and shall
be unconditional and irrevocable. The Facility Agent shall forward a
copy of the Extension Request (if any) to the Banks as soon as
practicable after receipt thereof. Upon receipt of the Extension
Request, the Term A Repayment Date shall be extended by 364 days
provided that no Extension Request may be delivered if there is an Event
of Default continuing at such time, and the Term
A Repayment Date shall not be so extended if on such date there is an
Event of Default continuing.
4. MULTICURRENCY OPTION
4.1 BORROWER'S REQUEST FOR OPTIONAL CURRENCY
The Borrower to which a Term B Advance has been or is to be made may,
not less than four Business Days' before the first day of an Interest
Period, request (by notice to the Facility Agent) that any Term B
Advance be denominated in any relevant Optional Currency during such
Interest Period, in which event such Term B Advance shall, subject to
Clause 4.2 (CONDITIONS FOR DENOMINATING A TERM B ADVANCE IN AN OPTIONAL
CURRENCY), be denominated in such Optional Currency. If the relevant
Borrower does not make such a request, each Term B Advance shall be
denominated in the currency in which it was denominated during the
preceding Interest Period.
4.2 CONDITIONS FOR DENOMINATING A TERM B ADVANCE IN AN OPTIONAL CURRENCY
If a Term B Advance is to be denominated in an Optional Currency during
any Interest Period relating thereto, but:
4.2.1 no later than one hour after the time at which the rate is to
be determined on the Quotation Date for such Interest Period,
the Facility Agent notifies the Borrowers' Agent and the Banks
that the Facility Agent is of the opinion that it is not
feasible for such Term B Advance to be made in such Optional
Currency or, as the case may be, denominated in such Optional
Currency; or
4.2.2 to give effect to such request would cause the Loan to be
denominated in more than two Optional Currencies,
the Facility Agent shall notify the relevant Borrower and the Banks and
such Term B Advance shall be denominated in dollars in an amount equal
to the Original Dollar Amount.
4.3 AMOUNTS OF TERM B ADVANCES
The amount of a Term B Advance during an Interest Period relating
thereto (in determining which it shall be assumed that any part of such
Term B Advance falling to be repaid on or before the last day of the
preceding Interest Period, if any, relating thereto is duly repaid)
shall be:
4.3.1 the Dollar Amount of such Term B Advance if such Term B
Advance is to be denominated in dollars during such Interest
Period; or
4.3.2 if such Term B Advance is to be denominated in an Optional
Currency, the amount of such Optional Currency which could be
purchased with the Dollar Amount of such Term B Advance at the
spot rate of exchange quoted by the Facility Agent at or about
11.00 a.m. on the third Business Day preceding the first day
of such Interest Period for the purchase of such Optional
Currency with dollars,
PROVIDED THAT if a Term B Advance is to be denominated in the same
Optional Currency during two successive Interest Periods and the amount
of such Term B Advance, calculated in accordance with sub-clause 4.3.2,
is no more than 5% higher or lower than its Existing Amount, its New
Amount shall be its Existing Amount.
4.4 CURRENCY CHANGE
If a Term B Advance is to be denominated in different currencies during
two successive Interest Periods, then, on the last day of the first of
those Interest Periods:
4.4.1 each Bank shall pay an amount equal to its portion of the New
Amount of such Term B Advance to the Facility Agent, who shall
hold the same on behalf of such Bank;
4.4.2 the Facility Agent shall:
(a) apply the amount so made available to it by each Bank in
or towards the purchase of such Bank's portion of the
Existing Amount of such Term B Advance and pay the
amount so purchased to such Bank; and
(b) pay any portion of the amount made available to it by
the Banks and not applied in accordance with sub-clause
4.4.2(a) to the relevant Borrower or, if an Event of
Default shall have occurred and the Facility Agent or an
Instructing Group so determines, to the Banks, any
amount so paid to the Banks being treated as if it were
a prepayment made by the relevant Borrower under Clause
13.2 (PREPAYMENT OF THE TERM LOAN); and
4.4.3 the relevant Borrower shall pay to the Facility Agent for the
account of each Bank a sum equal to the amount (if any) by
which such Bank's share of the Existing Amount of such Term B
Advance exceeds the portion thereof purchased by the Facility
Agent pursuant to sub-clause 4.4.2(a).
4.5 SAME CURRENCY
If a Term B Advance is to be denominated in the same Optional Currency
during two successive Interest Periods and there is any difference
between the Existing Amount of such Term B Advance and its New Amount,
then, on the last day of the first of those Interest Periods:
4.5.1 if the Existing Amount of such Term B Advance exceeds its New
Amount, the relevant Borrower shall pay to the Facility Agent
for the account of the Banks an amount equal to the amount of
such excess; or
4.5.2 if the New Amount of such Term B Advance exceeds its Existing
Amount:
(a) each Bank shall pay to the Facility Agent for the
account of the relevant Borrower an amount equal to its
portion of the amount of such excess; or
(b) if an Event of Default shall have occurred and the
Facility Agent or an Instructing Group so determines, no
such payments shall be made and a
sum equal to the aggregate amount which would have been
so payable shall be treated as having been prepaid by
the relevant Borrower under Clause 13.2 (PREPAYMENT OF
THE TERM LOAN).
5. INTEREST PERIODS FOR TERM ADVANCES
5.1 INTEREST PERIODS
The period for which a Term Advance is outstanding shall be divided into
successive periods each of which (other than the first, which shall
begin on the day such Term Advance is made) shall start on the last day
of the preceding such period.
5.2 DURATION
Subject to the provisions of Clause 2.6 (SYNDICATION), the duration of
each Interest Period shall, save as otherwise provided herein, be one,
two, three or six months (or nine months with the prior consent of the
Facility Agent), in each case as the Borrower to which such Term 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:
5.2.1 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 5.2.2, be one month; and
5.2.2 no Interest Period shall extend beyond a Term A Repayment Date
or Term B Repayment Date, as the case may be.
5.3 CONSOLIDATION OF TERM ADVANCES
If two or more Interest Periods relating to Term A Advances or Term B
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 Term A Advances or, as the case may be, Term B
Advances to which they relate shall be consolidated into and treated as
a single Term A Advance or, as the case may be, a single Term B Advance,
unless such consolidation shall not allow for the repayments required
under Clause 11.2 (REPAYMENT OF TERM B FACILITY).
5.4 DIVISION OF TERM ADVANCES
The Borrower to which such Term Advance is made may, by not less than
four Business Days' prior notice to the Facility Agent, direct that any
Term Advance shall, at the beginning of any Interest Period relating
thereto, be divided into (and thereafter, save as otherwise provided
herein, treated in all respects as) two or more Term Advances having
such amount, in the case of a Term A Advance, or such Original Dollar
Amounts in the case of a Term B Advance (in aggregate, equalling the
Dollar Amount of the Term B Advance being so divided) as shall be
specified by such Borrower in such notice, PROVIDED THAT such Borrower
shall not be entitled to make such a direction if:
5.4.1 as a result of so doing, there would be more than six
outstanding Term Advances; or
5.4.2 any Term Advance thereby coming into existence would have an
amount of less than euro 100,000,000 if a Term A Advance and
an Original Dollar Amount of $100,000,000 if a Term B Advance.
5.5 CONSOLIDATED AND DIVIDED TERM ADVANCES
For the purpose of Clause 4 (MULTICURRENCY OPTION), a Term B Advance
which comes into existence upon the consolidation of two or more
existing Term B Advances or the division of an existing Term B Advance
shall be treated as having existed prior to the date on which it comes
into existence and:
5.5.1 in the case of a consolidated Term B Advance, having an amount
equal to the aggregate of the amounts of the Term B Advances
so consolidated; and
5.5.2 in the case of a divided Term B Advance, having an amount
equal to the portion of the Term B Advance so divided which
bears the same proportion to the amount of the Term B Advance
so divided as the Dollar Amount of the Term B Advance coming
into existence bears to the Dollar Amount of the Term B
Advance so divided.
6. PAYMENT AND CALCULATION OF INTEREST ON TERM ADVANCES
6.1 PAYMENT OF INTEREST
On the last day of each Interest Period (and, if the Interest Period of
such Term Advance exceeds six months, on the expiry of each period of
six months during such Interest Period) the Borrower to which such Term
Advance has been made shall pay accrued interest on the Term Advance to
which such Interest Period relates.
6.2 CALCULATION OF INTEREST
The rate of interest applicable to a Term Advance from time to time
during an Interest Period relating thereto shall be the rate per annum
which is the sum of:
6.2.1 the Margin at the relevant time;
6.2.2 the Mandatory Cost Rate; and
6.2.3 the relevant interbank rate set out below:
(a) in relation to a Term A Advance, EURIBOR; or
(b) in relation to a Term B Advance denominated in euros,
EURIBOR, and if denominated in any currency other than
euro, LIBOR.
6.3 Interest is to be computed on a 360 day basis for dollars, euros and
Optional Currencies (except for pounds sterling where it will be
calculated on a 365 day basis) and the number of actual days elapsed.
7. UTILISATION OF THE REVOLVING FACILITY
7.1 DRAWDOWN CONDITIONS FOR REVOLVING ADVANCES
A Revolving Advance (which may be in dollars, euros or pounds sterling)
will be made by the Banks to a Borrower if:
7.1.1 not later than 10.00 a.m. (Amsterdam time) four Business Days
(or two Business Days with regard to the initial Revolving
Advance) before the proposed date for the making of such
Revolving Advance, the Facility Agent has received a completed
Notice of Drawdown from such Borrower;
7.1.2 the proposed date for the making of such Revolving Advance is
a Business Day falling one month or more before the Revolving
Termination Date;
7.1.3 the proposed amount and currency of such Revolving Advance is
(a) (if less than the Available Revolving Facility) an amount
not less than $25,000,000 and an integral multiple of
$5,000,000 (or, if the currency selected is an Optional
Currency, its equivalent) or (b) equal to the amount of the
Available Revolving Facility;
7.1.4 the proposed Term of the Revolving Advance requested is a
period of one, two, three or six months (or nine or twelve
months with the prior consent of the Facility Agent) or such
other period as the Banks may agree in each case ending on or
before the Revolving Termination Date;
7.1.5 there would not, immediately after the making of such
Revolving Advance, be more than 10 Revolving Advances
outstanding; and
7.1.6 on and as of the proposed date for the making of such
Revolving Advance, (a) no Event of Default or (save in
relation to a Rollover Advance) Potential Event of Default is
continuing and (b) the Repeated Representations are true in
all material respects,
then, save as otherwise provided herein, such Revolving Advance will be
made in accordance with the provisions hereof.
7.2 CONDITIONS FOR DRAWING A REVOLVING ADVANCE IN AN OPTIONAL CURRENCY
If a Borrower requests that a Revolving Advance be denominated in an
Optional Currency but no later than one hour after the time at which the
rate is to be determined on the Quotation Date for such Revolving
Advance, the Facility Agent notifies the Borrower's Agent and the Banks
that the Facility Agent is of the opinion that it is not feasible for
such Revolving Advance to be denominated in such Optional Currency the
Facility Agent shall notify the Borrower's Agent and the Banks and such
Revolving Advance shall be denominated in dollars.
7.3 EACH BANK'S PARTICIPATION IN REVOLVING ADVANCES
Each Bank will participate through its Facility Office in each Revolving
Advance made pursuant to this Clause 7 in the proportion borne by its
Available Revolving Commitment to the Available Revolving Facility
immediately prior to the making of that Revolving Advance.
7.4 REDUCTION OF AVAILABLE REVOLVING COMMITMENT
If a Bank's Revolving Commitment is reduced in accordance with the terms
hereof after the Facility Agent has received the Notice of Drawdown for
a Revolving Advance and such reduction was not taken into account in the
Available Revolving Facility, then both the Original Dollar Amount and
the amount of that Revolving Advance shall be reduced accordingly.
8. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
8.1 PAYMENT OF INTEREST
On the Repayment Date relating to each Revolving Advance (and, if the
Term of such Revolving Advance exceeds six months, on the expiry of each
period of six months during such Term) the Borrower to which such
Revolving Advance has been made shall pay accrued interest on that
Revolving Advance.
8.2 CALCULATION OF INTEREST
The rate of interest applicable to a Revolving Advance from time to time
during its Term shall be the rate per annum which is the sum of:
8.2.1 the Margin;
8.2.2 the Mandatory Cost Rate; and
8.2.3 the relevant interbank rate set out below:
(a) in relation to a Revolving Advance denominated in
dollars or any currency other than euro, LIBOR; or
(b) in relation to a Revolving Advance denominated in
euro, EURIBOR.
9. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
9.1 MARKET DISRUPTION If, in relation to any Advance:
9.1.1 the relevant interbank rate 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 or Term none or only one of the Reference
Banks supplies a rate for the purpose of determining the
relevant interbank rate for the relevant Interest Period or
Term; or
9.1.2 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 the
relevant interbank rate 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 9.2 (SUBSTITUTE INTEREST PERIOD AND
INTEREST RATE) shall apply to such Advance (if it is a Term Advance
which is already outstanding or a Rollover Advance). If sub-clause 9.1.1
or 9.1.2 applies to a proposed Advance, the relevant Borrower may elect
to have the Advance made on the basis of Clause 9.2 (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 9.1 such Advance shall
not be made.
9.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE
If sub-clause 9.1.1 of Clause 9.1 (MARKET DISRUPTION) applies to an
Advance, the duration of the relevant Interest Period or Term shall be
one month or, if less, such that it shall end on the next Term Repayment
Date (in the case of a Term Advance) or the Revolving Termination Date
(in the case of a Revolving Advance). If either sub-clause 9.1.1 or
9.1.2 of Clause 9.1 (MARKET DISRUPTION) applies to an Advance the rate
of interest applicable to such Advance during the relevant Interest
Period or Term shall (subject to any agreement reached pursuant to
Clause 9.3 (ALTERNATIVE RATE)) be the rate per annum which is the sum
of:
9.2.1 the Margin at such time;
9.2.2 the Mandatory Cost Rate in respect thereof at such time; and
9.2.3 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 or Term 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 or Term.
9.3 ALTERNATIVE RATE
If either of those events mentioned in sub-clauses 9.1.1 and 9.1.2 of
Clause 9.1 (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 (whether in euros, dollars or some other currency)
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.
10. NOTIFICATION
10.1 ADVANCES
Not less than three Business Days before the first day of an Interest
Period or Term, the Facility Agent shall notify each Bank of the
Facility that is to be utilised, the name of the Borrower, the proposed
amount or Dollar Amount of the relevant Advance (if applicable), the
proposed length of the relevant Interest Period or Term, whether or not
such Advance is to be denominated in an Optional Currency (and, if so,
the amount of such Advance in the relevant Optional Currency) and the
aggregate principal amount of the relevant Advance allocated to such
Bank pursuant to Clause 3.3 (EACH BANK'S PARTICIPATION IN TERM ADVANCES)
or Clause 7.3 (EACH BANK'S PARTICIPATION IN REVOLVING ADVANCES).
10.2 INTEREST RATE DETERMINATION
The Facility Agent shall promptly notify the relevant Borrower and the
Banks of each determination of a relevant interbank rate and the
Mandatory Cost Rate.
10.3 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 currency of an Advance
occasioned by the operation of Clause 4.2 (CONDITIONS FOR DENOMINATING A
TERM B ADVANCE IN AN OPTIONAL CURRENCY) or Clause 7.2 (CONDITIONS FOR
DRAWING A REVOLVING ADVANCE IN AN OPTIONAL CURRENCY), (b) the proposed
length of an Interest Period or Term or (c) any interest rate occasioned
by the operation of Clause 9 (MARKET DISRUPTION AND ALTERNATIVE INTEREST
RATES).
11. REPAYMENT OF THE TERM FACILITIES
11.1 REPAYMENT OF TERM A FACILITY
Each Borrower shall repay its share of the Term A Loan in full on the
Term A Repayment Date.
11.2 REPAYMENT OF TERM B FACILITY
Each Borrower shall repay its share of the Term B Loan as set out below:
TERM B REPAYMENT DATE TERM B FACILITY REPAYMENT AMOUNT ($)
2 June 2001 225,000,000
2 December 2001 112,500,000
2 June 2002 112,500,000
2 December 2002 112,500,000
2 June 2003 112,500,000
2 December 2003 112,500,000
2 June 2004 112,500,000
2 December 2004 125,000,000
Final Maturity Date 125,000,000
12. REPAYMENT OF THE REVOLVING FACILITY
Each Borrower to which a Revolving Advance has been made shall repay the
Revolving Advance made to it in full on the Repayment Date relating
thereto, but in any case not later than the Final Maturity Date.
13. CANCELLATION AND PREPAYMENT
13.1 CANCELLATION OF THE TERM FACILITIES
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
thereof for the Term A Facility, and being an amount not less than
$100,000,000 and an integral multiple of $50,000,000 for the Term B
Facility) of the Available Term A Facility or, as the case may be,
Available Term B Facility. Any such cancellation shall reduce the
Available Term A Commitments or, as the case may be, Available Term B
Commitments, and Term A Commitments or, as the case may be, Term B
Commitments, of the Banks rateably. On the last day of the Term A
Availability Period and Term B Availability Period respectively each
Bank's Available Term A Commitment and Available Term B Commitment
respectively shall be automatically cancelled.
13.2 PREPAYMENT OF THE TERM LOAN
The Borrower to which a Term 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 27.4 (BREAK COSTS), prepay the whole
of any Term Advance or any part of any Term Advance selected by the
Borrower (being an amount such that the amount of such Term Advance will
be reduced by an amount not less than euro 100,000,000 and an integral
thereof for the Term A Facility or, as the case may be, $100,000,000 and
an integral multiple of $50,000,000 for the Term B Facility) on the last
day of any Interest Period relating to that Term Advance which ends
after the last day of the Term A Availability Period or the Term B
Availability Period as the case may be.
13.3 CANCELLATION OF THE REVOLVING 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 $25,000,000 and an integral multiple of
$5,000,000) of the Available Revolving Facility. Any such cancellation
shall reduce the Available Revolving Commitment and Revolving Commitment
of each Bank rateably.
13.4 PREPAYMENT OF THE REVOLVING LOAN
The Borrower to which a Revolving Advance has been made may, by giving
to the Facility Agent not less than five Business Days prior notice to
that effect, but subject to Clause 27.4 (BREAK COSTS), prepay the whole
or any part of a Revolving Advance (being an amount such that the Dollar
Amount of such Revolving Advance will be
reduced by an amount not less than $10,000,000 and an integral multiple
of $5,000,000).
13.5 NOTICE OF CANCELLATION OR PREPAYMENT
Any notice of cancellation or prepayment given by a Borrower pursuant to
this Clause 13 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.
13.6 REPAYMENT OF A BANK'S SHARE OF THE LOAN
If:
13.6.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 14.1 (TAX GROSS-UP); or
13.6.2 any Bank claims indemnification from the Parent under Clause
14.2 (TAX INDEMNITY) or Clause 16.1 (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 notice but no
later than the last day of each Interest Period or Term 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 or Term
relates together with accrued interest and any other amounts outstanding
under this Agreement.
13.7 NO FURTHER ADVANCES
A Bank for whose account a repayment is to be made under Clause 13.6
(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 Term A Commitment, Available Term B Commitment and Available
Revolving Commitment shall be reduced to zero.
13.8 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.
13.9 NO REBORROWING OF THE TERM FACILITY
None of the Borrowers shall be entitled to reborrow any amount of the
Term Facilities which are repaid.
13.10 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:
13.10.1 the Parent shall promptly notify the Facility Agent upon
becoming aware of that event; and
13.10.2 upon receipt of such notice referred to in sub-clause 13.10.1,
the Facility Agent shall consult with the Parent and the
Banks; and
13.10.3 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 Facilities and declare the
outstanding Loan, together with accrued interest, and all
other amounts accrued under the Finance Documents immediately
due and payable, whereupon the Facilities will be cancelled
and all such outstanding amounts will become immediately due
and payable; and
13.10.4 for the purposes of paragraph 13.10 "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.
13.11 MANDATORY PREPAYMENT ON OCCURRENCE OF RELEVANT TRANSACTION
13.11.1 From the date of this Agreement and while any Advance is
outstanding the Parent shall apply (or shall procure that
there are applied) the Net Proceeds of any Relevant
Transaction in prepayment of each Term A Advance and each Term
B Advance, as hereinafter described on the earlier of the next
interest payment dates and the date six months after
completion of a Relevant Transaction.
13.11.2 Any prepayment under sub-clause 13.11.1 will be made at any
time subject to the provisions of Clause 27.4 (BREAK COSTS).
13.11.3 Notwithstanding sub-clause 13.11.1, the Parent shall only
apply (or procure the application of) the Net Proceeds of any
Relevant Transaction described in sub-clause 13.11.5(a)(i) if
the aggregate Net Proceeds for any single disposal exceed euro
25,000,000 (or its equivalent) or if the aggregate Net
Proceeds for all disposals in any calendar year exceed euro
100,000,000 (or its equivalent).
13.11.4 The Borrower shall promptly notify the Facility Agent when the
Net Proceeds of any Relevant Transaction exceed the amounts
described in sub-clause 13.11.3 and shall provide the Facility
Agent with documents detailing (to the extent reasonably
required by the Facility Agent) the way in which the Net
Proceeds have been calculated.
13.11.5 For the purpose of this Clause:
(a) "RELEVANT TRANSACTION" means:
(i) any disposal pursuant to Clauses 22.4.7 and 22.4.8
hereof of any member of the Group, or any assets
of any member of the Group if the ratio of Total
Net Debt as at the end of the most recent Relevant
Period to EBITDA in respect of that Relevant
Period is not less than 2.50:1 at the time of such
disposal; or
(ii) the issuance of any debt capital markets
instruments with a tenor in excess of 2 years
(other than the New Convertible Bonds).
(b) "NET PROCEEDS" means the proceeds of a Relevant
Transaction received by any member of the Group after
the date of this Agreement together with, in the case of
any disposal, any cash that is made available or
released to any member of the Group as a result of any
disposal less all amounts owed to prior ranking secured
creditors, directly related expenses, taxes, reserves
and provisions for payment of liabilities in respect of
the applicable Relevant Transaction retained by the
Group. For this purpose, "PROCEEDS" means cash or, in
the case of a disposal, where the consideration received
under that disposal by the relevant member of the Group
is in the form of loan notes, redeemable preference
shares (or similar instruments), the net amount in each
case which is calculated by the Parent (on terms
approved by the Facility Agent) to be the net present
value of the principal par value of the relevant
instrument on the date on which the relevant proceeds
are required to be applied in accordance with Clause
13.11.1.
13.11.6 Net Proceeds under Clause 13.11.5(a)(i) will be applied to
prepay the Term B Loan in inverse order of maturity and then
the Term A Loan and Net Proceeds under Clause 13.11.5(a)(ii)
will be applied to prepay the Term A Loan and then the Term B
Loan in inverse order of maturity.
14. TAXES
14.1 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.
14.2 TAX INDEMNITY
Without prejudice to Clause 14.1 (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 14.2 shall
not apply to:
14.2.1 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
14.2.2 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 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.
14.3 CLAIMS BY BANKS
A Bank intending to make a claim pursuant to Clause 14.2 (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.
15. TAX RECEIPTS
15.1 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.
15.2 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.
15.3 TAX CREDIT PAYMENT
If an additional payment is made under Clause 14 (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:
15.3.1 such credit, relief, remission or repayment is in respect of
or calculated with reference to the additional payment made
pursuant to Clause 14 (TAXES); and
15.3.2 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.
15.4 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 14 (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.
16. INCREASED COSTS
16.1 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:
16.1.1 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;
16.1.2 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
16.1.3 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.
16.2 INCREASED COSTS CLAIMS
16.2.1 A Bank intending to make a claim pursuant to Clause 16.1
(INCREASED COSTS) shall notify the Facility Agent of the event
giving rise to such claim, whereupon the Facility Agent shall
notify the Parent thereof.
16.2.2 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 16.1 (INCREASED COSTS).
16.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 16, no Bank
shall be entitled to make any claim under this Clause 16 in respect of:
16.3.1 any cost, increased cost or liability as referred to in Clause
16.1 (INCREASED COSTS) to the extent the same is compensated
by the Mandatory Cost Rate; or
16.3.2 any cost, increased cost or liability compensated by Clause
14 (TAXES); or
16.3.3 any cost, increased cost or liability attributable to the
wilful breach by the relevant Bank of any law or regulation.
17. 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:
17.1.1 such Bank shall not thereafter be obliged to participate in
the making of any Advances and the amount of its Available
Term A Commitment, Available Term B Commitment and Available
Revolving Commitment shall be immediately reduced to zero; and
17.1.2 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.
18. MITIGATION
If, in respect of any Bank, circumstances arise which would or would
upon the giving of notice result in:
18.1.1 an increase in any sum payable to it or for its account
pursuant to Clause 14.1 (TAX GROSS-UP);
18.1.2 a claim for indemnification pursuant to Clause 14.2 (TAX
INDEMNITY) or Clause 16.1 (INCREASED COSTS); or
18.1.3 the reduction of its Available Commitment to zero or any
repayment to be made pursuant to Clause 17 (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 18.1.1, 18.1.2 and 18.1.3, 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 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).
19. REPRESENTATIONS
Each Obligor makes on its own behalf the representations and warranties
set out in Clause 19.1 (LEGAL STATUS) to Clause 19.23 (ACQUISITION
TERMS) in relation to it and, in addition, the Parent makes the
representations set out therein in relation to the Group. The Original
Obligors acknowledge that the Finance Parties have entered into this
Agreement in reliance on those representations and warranties.
19.1 LEGAL STATUS
It is a company duly incorporated and validly existing under the laws of
the place of its incorporation.
19.2 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.
19.3 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.
19.4 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.
19.5 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:
19.5.1 are not prohibited by law, regulation or order or by its
constitutional documents;
19.5.2 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
19.5.3 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 Advances) 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 22.3 (NEGATIVE PLEDGE).
19.6 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.
19.7 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.
19.8 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.
19.9 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.
19.10 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.
19.11 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.
19.12 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.
19.13 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.
19.14 ENCUMBRANCES
Save for Permitted Encumbrances, no Encumbrance exists over any of the
present or future assets of any member of the Group.
19.15 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.
19.16 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.
19.17 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.
19.18 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.
19.19 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.
19.20 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.
19.21 OWNERSHIP OF THE BORROWERS
Each of the Borrowers (other than the Parent) is a wholly-owned
subsidiary of the Parent.
19.22 ACQUISITION FUNDING
The amount available but undrawn under the Facilities (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.
19.23 ACQUISITION TERMS
The Parent has not, and the Parent has procured that Nutricia has not,
without the prior approval of the Arrangers (or, following the
Syndication Date, the Facility Agent acting on the instructions of an
Instructing Group):
(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.
19.24 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 for this Clause 19.24, 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.
19.25 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, on each date on which
an Advance is or is to be made and by any Additional Borrower on the
date on which it becomes (or it is proposed that a company becomes) an
Additional Borrower.
19.26 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.
20. FINANCIAL INFORMATION
20.1 ANNUAL STATEMENTS
Each Obligor shall as soon as the same become available, but in any
event within 120 days after the end of each of its financial years,
deliver to the Facility Agent in sufficient copies for the Banks its
financial statements (or, in the case of the Parent, the consolidated
financial statements of the Group) for such financial year, audited in
the
case of the Parent (or, to the extent audited in the case of the other
Obligors), by an internationally recognised firm of independent
auditors.
20.2 SEMI-ANNUAL STATEMENTS
The Parent shall as soon as the same become available, but in any event
within 90 days after the end of each half of each of its financial
years, deliver to the Facility Agent in sufficient copies for the Banks
the consolidated financial statements of the Group for such period.
20.3 QUARTERLY STATEMENTS
If and when the Parent prepares and publishes quarterly statements, the
Parent shall thereafter as soon as the same become available, but in any
event within 45 days after the end of each quarter of each of its
financial years, deliver to the Facility Agent in sufficient copies for
the Banks the consolidated financial statements of the Group for such
period.
20.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS
Each Obligor shall ensure that each set of financial statements
delivered by it pursuant to this Clause 20 is:
20.4.1 prepared in accordance with the relevant Generally Accepted
Accounting Principles consistently applied; and
20.4.2 certified by an Authorised Signatory of such Obligor as giving
a true and fair view of, in the case of its annual statements
and as fairly representing, in the case of its semi-annual and
quarterly (if applicable) statements, its financial condition
(or in the case of the Parent, the consolidated financial
condition of the Group) as at the end of the period to which
those financial statements relate and of the results of its
(or, as the case may be, the Group's) operations during such
period.
20.5 COMPLIANCE CERTIFICATES
The Parent shall ensure that each set of financial statements of the
Group delivered by it pursuant to Clause 20.1 (ANNUAL STATEMENTS),
Clause 20.2 (SEMI-ANNUAL STATEMENTS) and, if applicable, Clause 20.3
(QUARTERLY STATEMENTS) is accompanied by a Compliance Certificate signed
by one Director of the Parent and such calculations applied to calculate
the financial covenant in Clause 21.1 (FINANCIAL CONDITION).
20.6 OTHER 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.
20.7 CHANGE OF ACCOUNTING TREATMENT
20.7.1 This Clause 20.7 applies if there is a change in the manner in
which the financial statements of the Group or the Parent are
prepared or in the
accounting principles or standards applied in the preparation
of those accounts.
20.7.2 If this Clause 20.7 applies or will apply the Parent agrees to
notify the Facility Agent. The Parent and the Facility Agent
will then negotiate in good faith with a view to making any
necessary changes to this Agreement to reflect the change
described in sub-clause 20.7.1. Neither party is bound to
continue the negotiations after the date 30 days after the
Facility Agent receives the Parent notice.
20.7.3 If this Clause 20.7 applies, and agreement is not reached
under sub-clause 20.7.2 above, the Parent agrees to deliver,
with each certificate referred to in Clause 20.5 (COMPLIANCE
CERTIFICATES), a reconciliation (audited in the case of a
certificate by the auditors). This reconciliation will show
the amounts utilised for the computations required for the
purposes of this Agreement as they would have been if no
change had occurred. The amounts in this reconciliation will
then be used for computations required for the purposes of
this Agreement instead of the corresponding amounts in the
certificates which would otherwise have been delivered under
Clause 20.5 (COMPLIANCE CERTIFICATES) based on the accounts
then being prepared.
20.8 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.
21. FINANCIAL CONDITION
21.1 FINANCIAL CONDITION
21.1.1 The Parent shall ensure that the financial condition of the
Group shall be such that the ratio of EBITDA to Net Interest
Expense in respect of each Relevant Period set out below will
not be less than the applicable ratio set out below
(calculated on a 12 month rolling basis):
RELEVANT PERIODS RATIO
Relevant Period ending on 31 December 2000 4.00:1
Thereafter 4.50:1
21.1.2 The Parent shall ensure that the financial condition of the
Group shall be such that the ratio of Total Senior Net Debt
(as at the last day of the applicable Relevant Period) to
EBITDA in respect of each Relevant Period, set out as below
will not be more than the appropriate ratio set out below:
RELEVANT PERIODS RATIO
Relevant Period ending on 31 December 3.25:1
2000
Relevant Periods ending on or before 31 2.75:1
December 2001
Thereafter 2.50:1
21.2 FINANCIAL DEFINITIONS
In Clause 21 (FINANCIAL CONDITION) the following terms have the
following meanings.
"EBITDA" for any period (calculated on a 12 month rolling basis) means
the net profit of the Group for that period:
(a) before taking into account all Extraordinary Items (whether
positive or negative) but after taking into account all
Exceptional Items (whether positive or negative);
(b) before deducting tax (including deferred tax), including
advance corporation tax, mainstream corporation tax and their
equivalents in any relevant jurisdiction;
(c) before deducting amortisation of any goodwill;
(d) before taking into account Interest accrued during that
period, whether or not paid, deferred or capitalised during
that period;
(e) before taking into account amortisation of financing costs
calculated in accordance with accounting principles generally
accepted in the Netherlands during that period;
(f) before deducting depreciation; and
(g) after adding any dividends or capital distributions received
from any non-consolidated interests or joint venture interests
of any member of the Group.
For any Relevant Period during which Rexall Sundown has not been a
subsidiary of the Parent for the whole of that Relevant Period, the
contributions of Rexall Sundown to EBITDA shall be annualised in respect
of that Relevant Period.
"NET INTEREST EXPENSE" for any period means the Interest due and payable
during that period as an obligation of any member of the Group (whether
or not paid or capitalised during or deferred for payment after such
period), but adjusted to take account of:
(a) any amount receivable or payable during that period by any
member of the Group (after deducting all taxes applicable to
that interest receivable) under interest rate or currency
hedging agreements or instruments; and
(b) any amount constituting Interest receivable during that period
by any member of the Group (after deducting all taxes
applicable thereto) in respect of any investment, deposit or
loan.
"EXCEPTIONAL ITEMS" has the meaning used in the accounting principles
generally accepted and adopted in the Netherlands but excluding any
Extraordinary Items.
"EXTRAORDINARY ITEMS" has the meaning used in the accounting principles
generally accepted and adopted in the Netherlands.
"INTEREST" means interest and amounts in the nature of interest.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of the Parent's financial year and each twelve months ending on the
last day of the first half year of the Parent's financial year and each
twelve months ending on the last day of the first and third quarters of
the Parent's financial year if quarterly statements are provided
pursuant to Clause 20.3 (QUARTERLY STATEMENTS).
"TOTAL SENIOR NET DEBT" means, at any time, without double counting, the
aggregate amount of all obligations of any member of the Group for or in
respect of Financial Indebtedness but excluding:-
21.2.1 the principal face amount of the Convertible Bonds and any
future convertible bonds;
21.2.2 any subordinated debt;
21.2.3 any interest or fees;
21.2.4 any liabilities that are fully cash collateralised;
21.2.5 any indebtedness referred to in paragraph (e) of the
definition of Financial Indebtedness,
LESS the aggregate of:
(a) cash balances; and
(b) liquid short term investments/deposits (being
investments/deposits having a tenor or duration of one
month or less) which investments have (or, if
applicable, where deposits are made with financial
institutions whose short term indebtedness has) a short
term debt rating of at least A-1/P-1 with Moodys
Investors Service, Inc./Standard & Poor's Ratings Group,
which are held or made by any member of the Group,
to the extent (i) denominated in freely exchangeable
currencies and (ii) the same are not being used as collateral
in respect of any liabilities of any member of the Group.
21.3 FINANCIAL TESTING
The financial covenant set out in Clause 21 (FINANCIAL CONDITION) shall
be tested semi-annually or, if quarterly financial statements are
delivered pursuant to Clause 20.3 (QUARTERLY STATEMENTS) quarterly by
reference to the latest available financial statements and/or each
Compliance Certificate delivered pursuant to Clause 20 (FINANCIAL
INFORMATION).
21.4 ACCOUNTING TERMS
All accounting expressions which are not otherwise defined herein shall
be construed in accordance with generally accepted accounting principles
in the Netherlands.
21.5 ADDITIONAL FINANCIAL INDEBTEDNESS
Prior to the delivery to the Facility Agent of the Compliance
Certificate for the annual audited financial statements of the Parent
for the financial year ended 31 December 2000, no Obligor or any 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, these Facilities) 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 .
21.6 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.
22. COVENANTS
Each Obligor makes on its own behalf the covenants set out in Clause
22.1 (RANKING OF OBLIGATIONS) to Clause 22.17 (INTELLECTUAL PROPERTY) in
relation to it and, in addition, the Parent makes the covenants set out
therein in relation to the Group.
22.1 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.
22.2 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.
22.3 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.
22.4 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:
22.4.1 disposals in the ordinary course of trading; or
22.4.2 disposals to which an Instructing Group has agreed, in
writing; or
22.4.3 disposals of assets in exchange for other assets comparable or
superior as to type, value and quality; or
22.4.4 disposals from one Obligor to another Obligor; or
22.4.5 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
22.4.6 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
22.4.7 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 Clause 20 (FINANCIAL
INFORMATION) in respect of the preceding financial year
PROVIDED THAT the exception contained in this sub-clause
22.4.7 shall apply to only one disposal or a related series of
disposals of the same asset or business, during the term of
the Facilities; or
22.4.8 any disposal (other than those in sub-clauses 22.4.1 to 22.4.7
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 Clause 20 (FINANCIAL
INFORMATION) in respect of the preceding financial year.
22.5 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 22.4.3
(DISPOSAL OF ASSETS)) for such acquisitions does not, in any financial
year of the Parent exceed euro 750,000,000 PROVIDED THAT this Clause
22.5 does not apply to any routine capital expenditure in the ordinary
course of business.
22.6 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.
22.7 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.
22.8 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.
22.9 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 after taking due care and will be
based on reasonable assumptions, but with no representation given as to
their realisation.
22.10 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.
22.11 MATERIAL LITIGATION
It will notify the Facility Agent promptly after it becomes aware that
any proceedings of the kind described in Clause 19.11 (LITIGATION) are
being threatened or are pending.
22.12 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.
22.13 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.
22.14 OFFER
22.14.1 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.
22.14.2 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.
22.15 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 and the maturity date of which shall
fall at least 3 months after the Revolving Termination Date.
22.16 HEDGING
The Parent will implement within 90 days of the date hereof a hedging
strategy agreed by the Arrangers and the Parent prior to the date
hereof.
22.17 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.
23. EVENTS OF DEFAULT
Each of Clause 23.1 (NON PAYMENT) to Clause 23.14 (VALIDITY) describes
circumstances which constitute an Event of Default for the purposes of
this Agreement.
23.1 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.
23.2 SPECIFIC COVENANTS
Any Obligor fails duly to perform or comply with any of its obligations
under Clause 20 (FINANCIAL INFORMATION), Clause 21.1 (FINANCIAL
CONDITION) and Clause 22.3 (NEGATIVE PLEDGE) to Clause 22.5
(ACQUISITIONS).
23.3 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.
23.4 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.
23.5 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 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.
23.6 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.
23.7 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.
23.8 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.
23.9 INABILITY TO PAY DEBTS
Any of the following is true:
23.9.1 the Parent or any Material Subsidiary is unable to pay its
debts as they fall due.
23.9.2 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).
23.9.3 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.
23.10 INSOLVENCY EQUIVALENCE
Anything analogous to any of the events described in Clauses 23.6
(INSOLVENCY AND REORGANISATION), 23.7 (ENFORCEMENT OF SECURITY), 23.8
(ATTACHMENT OR DISTRESS) or 23.9 (INABILITY TO PAY DEBTS) occurs in any
jurisdiction.
23.11 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.
23.12 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.
23.13 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.
23.14 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 23.2, 23.3, 23.4, 23.7, 23.8, 23.10 (to the extent
it refers to and incorporates Clauses 23.7 and 23.8) and 23.13 for the
period from the date of this Agreement until the date falling 60 days
after the drawdown of the first Advance hereunder.
23.15 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:
23.15.1 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
23.15.2 declare that any undrawn portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero.
23.16 ADVANCES DUE ON DEMAND
If, pursuant to Clause 23.15 (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:
23.16.1 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
23.16.2 select as the duration of any Interest Period or Term which
begins whilst such declaration remains in effect a period of
six months or less.
24. GUARANTEE AND INDEMNITY
24.1 GUARANTEE AND INDEMNITY
Each of the Guarantors irrevocably and unconditionally:
24.1.1 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
24.1.2 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.
24.2 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.
24.3 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
amounts owing by any Obligor under the Finance Documents and total
satisfaction of all the Obligors' actual and contingent obligations
under the Finance Documents.
24.4 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:
24.4.1 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;
24.4.2 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;
24.4.3 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;
24.4.4 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;
24.4.5 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;
24.4.6 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
24.4.7 any other act, event or omission which, but for this Clause
24.4, 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.
24.5 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.
24.6 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:
24.6.1 to make any demand of any Obligor;
24.6.2 to take any action or obtain judgment in any court against
any Obligor;
24.6.3 to make or file any claim or proof in a winding-up or
dissolution of any Obligor; or
24.6.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Obligor under the
Finance Documents.
24.7 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:
24.7.1 to be indemnified by an Obligor; and/or
24.7.2 to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
24.7.3 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.
24.8 SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Bank by virtue of Clause
24.1 (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.
25. COMMITMENT COMMISSION AND FEES
25.1 COMMITMENT COMMISSION ON THE REVOLVING FACILITY
The Parent shall pay to the Facility Agent for account of each Bank a
commitment commission:
25.1.1 on the amount of such Bank's Available Term A Commitment from
day to day during the period beginning on the date which is
ten days after the date hereof and ending on the last day of
the Term A Availability Period;
25.1.2 on the amount of such Bank's Available Term B Commitment from
day to day during the period beginning on the date which is
ten days after the date hereof and ending on the last day of
the Term B Availability Period; and
25.1.3 on the amount of such Bank's Available Revolving Commitment
from day to day during the period beginning on the date hereof
and ending on the Revolving Termination Date,
such commitment commission to be calculated at the rate of 50% of the
Margin from time to time and payable in arrear on the last day of each
successive period of three months which ends during such period and on
the last day of the Term A Availability Period, the last day of the Term
B Availability Period or, as the case may be, the Revolving Termination
Date.
25.2 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.
25.3 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.
26. COSTS AND EXPENSES
26.1 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, execution and syndication of the Finance Documents, any
other document referred to in the Finance Documents and the completion
of the transactions therein contemplated.
26.2 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).
26.3 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.
26.4 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.
26.5 BANKS' LIABILITIES FOR COSTS
If the Parent fails to perform any of its obligations under this Clause
26, 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.
27. DEFAULT INTEREST AND BREAK COSTS
27.1 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 30 (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 27) be selected by the
Facility Agent.
27.2 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 or Term, 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 or Term relating
thereto:
27.2.1 the first Interest Period applicable to such Unpaid Sum shall
be of a duration equal to the unexpired portion of the current
Interest Period or Term relating to that Advance; and
27.2.2 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.
27.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 27.2 (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.
27.4 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 or Term 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 or Term 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 or Term 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 relevant 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 or Term.
28. PARENT'S INDEMNITIES
28.1 PARENT'S INDEMNITY
The Parent undertakes to indemnify:
28.1.1 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;
28.1.2 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 of Clause 4
(MULTICURRENCY OPTION) or Clause 30 (PAYMENTS);
28.1.3 each Bank against any cost or loss it may suffer under Clause
26.5 (BANKS' LIABILITIES FOR COSTS) or Clause 33.5
(INDEMNIFICATION);
28.1.4 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;
28.1.5 each Bank against any loss it may suffer or incur as a result
of its funding its portion of any Advance which is denominated
in dollars by reason of Clause 4.2 (CONDITIONS FOR
DENOMINATING A TERM B ADVANCE IN AN OPTIONAL CURRENCY) or
Clause 7.2 (CONDITIONS FOR DRAWING A REVOLVING ADVANCE IN AN
OPTIONAL CURRENCY); and
28.1.6 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.
28.2 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:
28.2.1 making or filing a claim or proof against such Obligor; or
28.2.2 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.
28.3 ACQUISITION INDEMNITY
28.3.1 The Parent shall indemnify the Facility Agent, each Arranger
and each Bank (each an "INDEMNIFIED PARTY") from time to time
within five Business Days 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.
28.3.2 Any Indemnified Party intending to invoke sub-clause 28.3.1
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.
28.3.3 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.
28.3.4 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.
28.3.5 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.
29. 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:
29.1.1 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;
29.1.2 each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated;
29.1.3 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
29.1.4 each payment pursuant to Clause 14.2 (TAX INDEMNITY), Clause
16.1 (INCREASED COSTS) or Clause 28.1 (PARENT'S INDEMNITY)
shall be made in the currency specified by the party claiming
thereunder; and
29.1.5 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 Revolving Commitment or
Available Term 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).
30. PAYMENTS
30.1 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.
30.2 PAYMENTS BY THE FACILITY AGENT
30.2.1 Save as otherwise provided herein, each payment received by
the Facility Agent pursuant to Clause 30.1 (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
(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.
30.2.2 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.
30.3 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.
30.4 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.
30.5 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.
30.6 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 apply the amount received towards the
obligations of the Obligors under this Agreement in the following order:
30.6.1 FIRST, in or towards payment of any unpaid fees, costs and
expenses of each of the Facility Agent and the Arrangers;
30.6.2 SECONDLY, in or towards payment PRO RATA of any accrued
interest due but unpaid;
30.6.3 THIRDLY, in or towards payment PRO RATA of any principal due
but unpaid; and
30.6.4 FOURTHLY, in or towards payment PRO RATA of any other sum due
but unpaid.
30.7 VARIATION OF PARTIAL PAYMENTS
The order of payments set out in Clause 30.6 (PARTIAL PAYMENTS) shall
override any appropriation made by the Obligor to which the partial
payment relates but the order set out in sub-clauses 30.6.2, 30.6.3 and
30.6.4 of Clause 30.6 (PARTIAL PAYMENTS) may be varied if agreed by all
the Banks.
30.8 BUSINESS DAYS
30.8.1 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).
30.8.2 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.
31. SET-OFF
31.1 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.
31.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause
31.1 (CONTRACTUAL SET-OFF).
32. SHARING
32.1 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 30
(PAYMENTS), then such Recovering Bank shall:
32.1.1 notify the Facility Agent of such receipt or recovery;
32.1.2 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 30.6
(PARTIAL PAYMENTS).
32.2 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 30.6
(PARTIAL PAYMENTS).
32.3 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 32.2
(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).
32.4 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:
32.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 32.2 (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
32.4.2 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.
32.5 EXCEPTION
This Clause 32 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.
32.6 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.
33. THE AGENT, THE ARRANGERS AND THE BANKS
33.1 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.
33.2 FACILITY AGENT'S DISCRETIONS
The Facility Agent may:
33.2.1 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 23.1 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;
33.2.2 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 38 (NOTICES), Clause
33.14 (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;
33.2.3 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;
33.2.4 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;
33.2.5 rely upon any communication or document believed by it to be
genuine;
33.2.6 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;
33.2.7 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, 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
33.2.8 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.
33.3 FACILITY AGENT'S OBLIGATIONS
The Facility Agent shall:
33.3.1 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;
33.3.2 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 23.1 (NON-PAYMENT) of which
it has actual knowledge;
33.3.3 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
33.3.4 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.
33.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Facility Agent nor any of the Arrangers shall:
33.4.1 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;
33.4.2 be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
33.4.3 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 in its opinion constitute a breach of any law or be
otherwise actionable at the suit of any person;
33.4.4 be under any obligations other than those for which express
provision is made herein; or
33.4.5 be or be deemed to be a fiduciary for any other party hereto.
33.5 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 28.1 (PARENT'S INDEMNITY)).
33.6 EXCLUSION OF LIABILITIES
Except in the case of gross negligence or wilful misconduct, none of the
Facility Agent and the Arrangers accepts any responsibility:
33.6.1 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;
33.6.2 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
33.6.3 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.
33.7 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 33.6 (EXCLUSION OF LIABILITIES).
33.8 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.
33.9 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 33.
33.10 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.
33.11 SUCCESSOR FACILITY AGENT
If the Facility Agent gives notice of its resignation pursuant to Clause
33.9 (RESIGNATION) or it is removed pursuant to Clause 33.10 (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.
33.12 RIGHTS AND OBLIGATIONS
If a successor to the Facility Agent is appointed under the provisions
of Clause 33.11 (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 33 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.
33.13 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:
33.13.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
33.13.2 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;
33.13.3 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
33.13.4 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.
33.14 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).
33.15 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 33, 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.
34. ASSIGNMENTS AND TRANSFERS
34.1 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.
34.2 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.
34.3 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 34.5
(TRANSFERS BY BANKS) all or any of its rights, benefits and obligations
under the Finance Documents to a bank or financial institution.
34.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 34.3 (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.
34.5 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 34.3
(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:
34.5.1 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 34.5
as "DISCHARGED RIGHTS AND OBLIGATIONS");
34.5.2 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;
34.5.3 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
34.5.4 such Transferee shall become a party hereto as a "Bank".
34.6 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause
34.4 (ASSIGNMENTS BY BANKS) or a transfer takes effect pursuant to
Clause 34.5 (TRANSFERS BY BANKS) the relevant assignee or Transferee
shall pay to the Facility Agent for its own account a fee of euro 1,000.
34.7 DISCLOSURE OF INFORMATION
Any Bank may disclose to any person:
34.7.1 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;
34.7.2 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
34.7.3 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 34.7.1 and 34.7.2, the person to whom such
information is to be given has entered into a Confidentiality
Undertaking.
34.8 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 34.
34.9 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 14 (TAXES) or Clause 16.1 (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.
35. ADDITIONAL BORROWERS
35.1 REQUEST FOR ADDITIONAL BORROWERS
The Parent may request that any of its wholly-owned subsidiaries become
an Additional Borrower by delivering to the Facility Agent a Borrower
Accession Memorandum duly executed by the Parent and such subsidiary,
together with the documents and other evidence listed in Schedule 8
(ADDITIONAL CONDITIONS PRECEDENT) in relation to such subsidiary. All
such Additional Borrowers must also become Additional Guarantors and
comply with the provisions of Clause 36 (ADDITIONAL GUARANTORS).
35.2 BORROWER CONDITIONS PRECEDENT
A company, in respect of which the Parent has delivered a Borrower
Accession Memorandum to the Facility Agent, shall become an Additional
Borrower and assume all the rights, benefits and obligations of a
Borrower as if it had been an Original Borrower on the date on which the
Facility Agent notifies the Parent that:
35.2.1 an Instructing Group accepts the Parent's request in respect
of such subsidiary; and
35.2.2 the Facility Agent has received, in form and substance
satisfactory to it, all documents and other evidence listed in
Schedule 8 (ADDITIONAL CONDITIONS PRECEDENT) in relation to
such subsidiary,
unless on such date an Event of Default or Potential Event of Default is
continuing or would occur as a result of such subsidiary becoming an
Additional Borrower.
35.3 RESIGNATION OF A BORROWER
If at any time a Borrower (other than the Parent) is under no actual or
contingent obligation under or pursuant to any Finance Document, the
Parent may request that such Borrower shall cease to be a Borrower by
delivering to the Facility Agent a Resignation Notice. Such Resignation
Notice shall be accepted by the Facility Agent on the date on which it
notifies the Parent that it is satisfied that such Borrower is under no
actual or contingent obligation under or pursuant to any Finance
Document and such Borrower shall immediately cease to be a Borrower and
shall have no further rights, benefits or obligations hereunder save for
those which arose prior to such date.
36. ADDITIONAL GUARANTORS
36.1 REQUEST FOR ADDITIONAL GUARANTORS
The Parent may request that any of its wholly-owned subsidiaries become
an Additional Guarantor by delivering to the Facility Agent a Guarantor
Accession Memorandum duly executed by the Parent and such subsidiary,
together with the documents and other evidence listed in Schedule 9
(ADDITIONAL CONDITIONS PRECEDENT) in relation to such subsidiary.
36.2 GUARANTOR CONDITIONS PRECEDENT
A company, in respect of which the Parent has delivered a Guarantor
Accession Memorandum to the Facility Agent, shall become an Additional
Guarantor and assume
all the rights, benefits and obligations of a Guarantor as if it had
been an original party hereto as a Guarantor on the date on which the
Facility Agent notifies the Parent that:
36.2.1 an Instructing Group accepts the Parent's request in respect
of such subsidiary; and
36.2.2 the Facility Agent has received in form and substance
satisfactory to it, all the documents and other evidence
listed in Schedule 9 (ADDITIONAL CONDITIONS PRECEDENT),
unless on such date an Event of Default or Potential Event of Default is
continuing or would occur as a result of such subsidiary becoming an
Additional Guarantor.
37. CALCULATIONS AND EVIDENCE OF DEBT
37.1 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 for pounds sterling 365 days) or in any case
where market practice differs, in accordance with market practice.
37.2 PROPORTIONATE REDUCTIONS
Any repayment of an Advance denominated in an Optional Currency shall
reduce the amount of such Advance by the amount of such Optional
Currency repaid and shall reduce the Dollar Amount of such Advance
proportionately.
37.3 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 or LIBOR, this
Clause 37.3 shall not apply if only one Reference Bank supplies a
quotation.
37.4 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.
37.5 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.
37.6 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 37.4 (EVIDENCE OF DEBT)
and Clause 37.5 (CONTROL ACCOUNTS) shall be PRIMA FACIE evidence of the
existence and amounts of the specified obligations of the Obligors.
37.7 ROUNDING AND OTHER CONSEQUENTIAL CHANGES
37.7.1 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 Term A Facility, Available Term
B Facility or the Available Revolving 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.
37.7.2 Save as expressly provided in this Clause 37.7, 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.
37.8 CERTIFICATES OF BANKS
A certificate of a Bank as to:
37.8.1 the amount by which a sum payable to it hereunder is to be
increased under Clause 14.1 (TAX GROSS-UP);
37.8.2 the amount for the time being required to indemnify it against
any such cost, payment or liability as is mentioned in Clause
14.2 (TAX INDEMNITY), Clause 16.1 (INCREASED COSTS) or Clause
28.1 (PARENT'S INDEMNITY); or
37.8.3 the amount of any credit, relief, remission or repayment as is
mentioned in Clause 15.3 (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.
37.9 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 24 (GUARANTEE
AND INDEMNITY).
38. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
38.1 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.
38.2 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.
39. NOTICES
39.1 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.
39.2 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:
39.2.1 in the case of the Original Obligors and the Facility Agent,
identified with its name below;
39.2.2 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); and
39.2.3 in the case of each Additional Borrower, in the Borrower
Accession Memorandum, or in the case of each Additional
Guarantor, in the Guarantor Accession Memorandum,
PROVIDED THAT not more than one address may be specified by each party
pursuant to this Clause 39.2 at any time. Any Bank with two Facility
Offices shall specify its main address and fax number for the purpose of
notices.
39.3 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to the Finance Documents shall:
39.3.1 if by way of fax, be deemed to have been received when
transmission has been completed; and
39.3.2 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).
39.4 NOTIFICATION OF CHANGES
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 39.2 (ADDRESSES) or changing its own address
or fax number, the Facility Agent shall notify the other parties hereto
of such change.
39.5 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.
39.6 DEEMED RECEIPT BY THE OBLIGORS
Any communication or document made or delivered to the Parent in
accordance with Clause 39.3 (DELIVERY) shall be deemed to have been made
or delivered to each of the Obligors.
40. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
41. AMENDMENTS
41.1 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.
41.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
41.2.1 Clause 32 (SHARING) or this Clause 41;
41.2.2 a change in the principal amount of or currency of any
Advance, or deferral of the Term A Repayment Date, any Term B
Repayment Date or Repayment Date;
41.2.3 a reduction in the Margin or the amount or deferral of any
payment of principal, interest, fees or commission payable;
41.2.4 a release of the Parent from any of its obligations set out
in Clause 24 (GUARANTEE AND INDEMNITY);
41.2.5 the definition of Instructing Group, Term A Availability
Period, Term B Availability Period or Revolving Termination
Date; or
41.2.6 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.
41.3 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:
41.3.1 amend or waive this Clause 41, Clause 26 (COSTS AND EXPENSES)
or Clause 33 (THE FACILITY AGENT, THE ARRANGERS AND THE
BANKS); or
41.3.2 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.
42. GOVERNING LAW
This Agreement is governed by English law.
43. JURISDICTION
43.1 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).
43.2 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.
43.3 NON-EXCLUSIVE JURISDICTION
This Clause 43 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 43.1 (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.
43.4 SERVICE OF PROCESS
Each Original 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 Original 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 43.4 ceases to be effective, the relevant Original
Obligor shall immediately appoint another person in England to accept
service of process on its behalf in England. If an Original 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 Original Obligor. Nothing contained herein
shall restrict the right to serve process in any other manner allowed by
law. This Clause 43.4 applies to Proceedings in England and to
Proceedings elsewhere.
44. 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
Facilities 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 Facilities or the Finance Documents.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
SCHEDULE 1
THE ORIGINAL PARTIES
PART A
THE ORIGINAL BANKS
BANK TERM A TERM B REVOLVING
COMMITMENT COMMITMENT COMMITMENT
(EURO) ($) ($)
AC Financial Services Dublin 200,000,000 230,000,000 60,000,000
Citibank, N.A. 200,000,000 230,000,000 60,000,000
Deutsche Bank AG 200,000,000 230,000,000 60,000,000
ING Bank N.V. 200,000,000 230,000,000 60,000,000
Rabobank International 200,000,000 230,000,000 60,000,000
--------------------- ------------------ ----------------
TOTAL EUR 1,000,000,000 $1,150,000,000 $300,000,000
PART B
THE BORROWERS
NAME OF ORIGINAL BORROWER REGISTERED NO.
Koninklijke Numico N.V. 27090619
Numico Nationaal B.V. 27128983
Nutricia International B.V. 27112523
Pharmafood B.V. 08020001
PART C
THE GUARANTORS
NAME OF ORIGINAL GUARANTOR REGISTERED NO.
Koninklijke Numico N.V. 27090619
Nutricia International B.V. 27112523
Numico Nationaal B.V. 27128983
Pharmafood B.V. 08020001
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 whereby multicurrency
term and revolving loan facility were 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 TERM FACILITIES", "TERM A
ADVANCES", "TERM B ADVANCES", "BANK'S PARTICIPATION IN THE REVOLVING
FACILITY" and "REVOLVING ADVANCES" accurately summarises its
participation in the Credit Agreement and the Interest Period or Term 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 Term A Commitment,
Term B Commitment and/or Revolving 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 34.5 (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.
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
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation in the Term A Facility:
Bank's Term A Commitment Portion Transferred
5. Bank's Participation in the Term B Facility:
Bank's Term B Commitment
6. Term A Advance(s):
Amount of Bank's Participation Interest Period Portion Transferred
7. Term B Advance(s):
Amount of Bank's Participation Interest Period Portion Transferred
8. Bank's Participation in the Revolving Facility:
Bank's Revolving Commitment Portion Transferred
9. Revolving Advance(s): Term and Portion Transferred
Amount of Bank's Participation Repayment Date
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
- -----------------------------------------------------------------------------
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments
in euros:
Account for Payments
in dollars:
Fax:
Telephone:
- -----------------------------------------------------------------------------
* Details of the Bank's Available Term Commitment should not be completed after
the last day of the Term A Availability Period or Term B Availability Period as
the case may be.
SCHEDULE 3
CONDITIONS PRECEDENT
1. In relation to each Original 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 Original
Obligor, of the constitutional documents of such Original
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 Original
Obligor, of a board resolution (including the supervising
board, if relevant) of such Original 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 Original
Obligor pursuant thereto;
(c) a certificate of an Authorised Signatory of such Original
Obligor setting out the names and signatures of the persons
authorised to sign, on behalf of such Original Obligor, the
Finance Documents and any documents to be delivered by such
Original Obligor pursuant thereto; and
(d) a certificate of an Authorised Signatory of such Original
Obligor confirming that utilisation of the Facilities would
not breach any restriction of its borrowing powers.
2. A copy, certified a true copy by or on behalf of each Original 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 Original Obligor's
jurisdiction of incorporation and to enable each Original Obligor to
perform its obligations hereunder.
3. An opinion of the General Counsel to each Original 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.
6. Evidence satisfactory to the Facility Agent that the euro 1,400,000,000
Multicurrency Credit Facility dated 23 November 1999 has been, or will
be, cancelled and prepaid on the first drawdown date under this
Agreement.
7. Evidence that the party specified in Clause 43.4 (SERVICE OF PROCESS)
has agreed to act as the agent of each Original Obligor for the service
of process in England.
8. 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.
9. 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 22.13 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
10. A hedging strategy letter from the Parent to the Facility Agent.
11. The report of the depositary agent indicating the number of shares of
Rexall Sundown which have been tendered to Nutricia.
12. Receipt simultaneously of the proceeds of the Bridge Loan in an amount
of at least euro 1,050,000,000, or satisfactory evidence of the receipt
thereof by the Parent on the date of the first Advance hereunder.
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 a [Term A]/[Term
B]/[Revolving] Advance having an [amount/Original Dollar Amount of
[euro/$]] upon the terms and subject to the conditions contained
therein.
4. We would like this Advance to be denominated in [currency]. If such
currency is unavailable for the Advance pursuant to [Clause 4.2/Clause
7.2] then we would like this Advance to be denominated in [dollars].
5. [We would like this Advance to have a first Interest Period of [ ]
months duration.]*/[We would like this Advance to be divided upon the
making thereof into Advances as follows:
ORIGINAL DOLLAR AMOUNT CURRENCY AMOUNT [DURATION OF FIRST INTEREST
PERIOD]*
OR
We would like this Advance to have a Term of [ ] months duration.]**
6. [Payment Directions].
7. We confirm that, at the date hereof, the Repeated Representations are
true in all material respects and no Event of Default is continuing.
- -----------------------------------------------------------------------------
* If the Notice of Drawdown is for a Term Advance, insert only if there are
no outstanding Term Advances.
** Delete as appropriate.
8. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully
.............................
Authorised Signatory
for and on behalf of
[Name of Borrower]
SCHEDULE 5
EXISTING ENCUMBRANCES
NAME OF ORIGINAL 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.
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: ING Bank NV
Date:
Dear Sirs,
We refer to an 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, the financial institutions defined therein as Banks and others.
Terms defined in the Credit Agreement shall bear the same meaning herein.
We confirm that:
(1) the ratio of EBITDA to Net Interest Expense is/is not less than [ ];
and
(2) the ratio of Total Senior Net Debt to EBITDA is/is not greater than
[ ].
[Signed: ............... ...............
Director Director
of of
Koninklijke Numico N.V. Koninklijke Numico N.V.
OR
.....................
for and on behalf of
[name of auditors of the Parent]
SCHEDULE 7
FORM OF BORROWER ACCESSION MEMORANDUM
To: ING Bank N.V.
From: [Subsidiary] and Koninklijke Numico N.V.
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated 2 June, 2000 and
made between a group of borrowers including Koninklijke Numico N.V. (the
"PARENT"), ING Bank N.V. as agent, the financial institutions defined
therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The Parent requests that [SUBSIDIARY] become an Additional Borrower
pursuant to Clause 35.1 (REQUEST FOR ADDITIONAL BORROWERS) of the Credit
Agreement.
4. [SUBSIDIARY] is a company duly organised under the laws of [NAME OF
RELEVANT JURISDICTION].
5. [SUBSIDIARY] confirms that it has received from the Parent a true and
up-to-date copy of the Credit Agreement.
6. [SUBSIDIARY] undertakes, upon its becoming a Borrower, to perform all
the obligations expressed to be undertaken under the Credit Agreement by
a Borrower and agrees that it shall be bound by the Credit Agreement in
all respects as if it had been an original party thereto as an Original
Borrower.
7. The Parent confirms that, if [SUBSIDIARY] is accepted as an Additional
Borrower, its guarantee obligations pursuant to Clause 24 (GUARANTEE AND
INDEMNITY) of the Credit Agreement will apply to all the obligations of
[SUBSIDIARY] under the Finance Documents in all respects in accordance
with the terms of the Credit Agreement.
8. The Parent:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of
Default is continuing or would occur as a result of
[SUBSIDIARY] becoming an Additional Borrower.
9. [SUBSIDIARY] makes the representations and warranties set out in
Clause 19.1 (LEGAL STATUS) to Clause 19.21 (OWNERSHIP OF THE BORROWERS).
10. [SUBSIDIARY'S] administrative details are as follows:
Address:
Fax No.:
11. [PROCESS AGENT*
[SUBSIDIARY] 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 [ADDRESS OF SUBSIDIARY'S PLACE OF
BUSINESS IN ENGLAND] or at any address in Great Britain at which process
may be served on it in accordance with Part XXIII of the Companies Act
1985]/[on NAME OF PROCESS AGENT IN ENGLAND at ADDRESS OF PROCESS AGENT
or, if different, its registered office. If [[SUBSIDIARY] ceases to have
a place of business in Great Britain]/[the appointment of the person
mentioned above ceases to be effective], [SUBSIDIARY] shall immediately
appoint another person in England to accept service of process on its
behalf in England. If it 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. Nothing contained herein
shall restrict the right to serve process in any other manner allowed by
law. This applies to Proceedings in England and to Proceedings
elsewhere.]
12. This Memorandum shall be governed by English law.
[Parent] [Subsidiary]
By: ............................... By: ..............................
* This clause is required only if the Acceding Borrower is not incorporated in
England or Wales.
SCHEDULE 8
FORM OF GUARANTOR ACCESSION MEMORANDUM
To: ING Bank N.V.
From: [Subsidiary]
and
Koninklijke Numico N.V.
Dated:
Dear Sirs
1. We refer to an agreement (the "CREDIT AGREEMENT") dated 2 June 2000 and
made between, INTER ALIA, a group of borrowers including Koninklijke
Numico N.V. (the "PARENT"), ING Bank N.V., as agent, the financial
institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. The Parent requests that [SUBSIDIARY] become an Additional Guarantor
pursuant to Clause 36 (REQUEST FOR ADDITIONAL GUARANTOR) of the Credit
Agreement.
4. [SUBSIDIARY] is a company duly organised under the laws of [NAME OF
RELEVANT JURISDICTION].
5. [SUBSIDIARY] confirms that it has received from the Parent a true and
up-to-date copy of the Credit Agreement.
6. [SUBSIDIARY] undertakes, upon its becoming a Guarantor, to perform all
the obligations expressed to be undertaken under the Credit Agreement by
a Guarantor and agrees that it shall be bound by the Credit Agreement in
all respects as if it had been an original party thereto as an Original
Guarantor.
7. The Parent:
(i) repeats the Repeated Representations; and
(ii) confirms that no Event of Default or Potential Event of
Default is continuing or would occur as a result of
[SUBSIDIARY] becoming an Additional Guarantor.
8. [SUBSIDIARY] makes the representations set out in Clause 21
(REPRESENTATIONS) other than Clause 21.12 (REPORTS), Clause 21.13 (GROUP
STRUCTURE), Clause 21.17 (INFORMATION AND MEMORANDUM) and
Clause 21.22 (SUBSIDIARIES).
9. [SUBSIDIARY'S] administrative details are as follows:
Address:
Fax No.:
Contact
10. [PROCESS AGENT* [SUBSIDIARY] 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 [ADDRESS OF SUBSIDIARY'S PLACE
OF BUSINESS IN ENGLAND] or at any address in Great Britain at which
process may be served on it in accordance with Part XXIII of the
Companies Act 1985] / [on NAME OF PROCESS AGENT IN ENGLAND at ADDRESS OF
PROCESS AGENT or, if different, its registered office. If [SUBSIDIARY]
ceases to have a place of business in Great Britain]/[ the appointment
of the person mentioned above ceases to be effective], [SUBSIDIARY]
shall immediately appoint another person in England to accept service of
process on its behalf in England. If it fails to do so (and such failure
continues for a period of not less than fourteen days), the Agent shall
be entitled to appoint such a person by notice. Nothing contained herein
shall restrict the right to serve process in any other manner allowed by
law. This applies to Proceedings in England and to Proceedings
elsewhere.]
11. This Memorandum shall be governed by English law.
[To be executed by deed.]
* This clause is required only if the Acceding Guarantor is not incorporated in
England or Wales.
SCHEDULE 9
ADDITIONAL CONDITIONS PRECEDENT
1. A copy, certified as at the date of the relevant Borrower's Accession
Memorandum a true and up-to-date copy by an Authorised Signatory of the
proposed Additional Borrower, of the constitutional documents of such
proposed Additional Borrower.
2. A copy, certified as at the date of the relevant Borrower's Accession
Memorandum a true and up-to-date copy by an Authorised Signatory of the
proposed Additional Borrower, of a board resolution of such proposed
Additional Borrower approving the execution and delivery of an
Borrower's Accession Memorandum, the accession of such proposed
Additional Borrower to this Agreement and the performance of its
obligations under the Finance Documents and authorising a named person
or persons to sign such Borrower's Accession Memorandum, any other
Finance Document and any other documents to be delivered by such
proposed Additional Borrower pursuant thereto.
3. A certificate of an Authorised Signatory of the proposed Additional
Borrower setting out the names and signatures of the person or persons
authorised to sign, on behalf of such proposed Additional Borrower, the
Borrower's Accession Memorandum, any other Finance Documents and any
other documents to be delivered by such proposed Additional Borrower
pursuant thereto.
4. A certificate of an Authorised Signatory of the proposed Additional
Borrower confirming that the utilisation of the Facilities would not
breach any restriction of its borrowing powers.
5. If the proposed Additional Borrower is incorporated in a jurisdiction
other than England and Wales, a copy, certified a true copy by or on
behalf of the proposed Additional Borrower, of each such law, decree,
consent, licence, approval, registration or declaration as is, in the
opinion of counsel to the Banks, necessary to render the relevant
Borrower's Accession Memorandum legal, valid, binding and enforceable,
to make such Borrower's Accession Memorandum admissible in evidence in
the proposed Additional Borrower's jurisdiction of incorporation and to
enable the proposed Additional Borrower to perform its obligations
thereunder and under the other Finance Documents.
6. A copy, certified a true copy by an Authorised Signatory of the proposed
Additional Borrower, of its latest financial statements.
7. If the proposed Additional Borrower is incorporated in a jurisdiction
other than England and Wales, an opinion of the Banks' local counsel in
the relevant jurisdiction in form and substance satisfactory to the
Facility Agent.
8. An opinion of Clifford Chance, solicitors to the Facility Agent, in form
and substance satisfactory to the Facility Agent.
9. If the proposed Additional Borrower is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified
in the relevant Borrower's Accession Memorandum has agreed to act as its
agent for the service of process in England.
SCHEDULE 10
FORM OF RESIGNATION NOTICE
To: ING Bank NV
From: Koninklijke Numico N.V.
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated 2 June 2000 and
made between a group of borrowers including Koninklijke Numico N.V. (the
"PARENT"), ING Bank NV as agent, the financial institutions defined
therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. We declare that [NAME OF BORROWER] is under no actual or contingent
obligation under any Finance Document in its capacity as a Borrower.
4. Pursuant to Clause 35.3 (RESIGNATION OF A BORROWER) we hereby request
that [name of Obligor] shall cease to be a Borrower under the Credit
Agreement.
Yours faithfully
Koninklijke Numico N.V.
SCHEDULE 11
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.
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.
SCHEDULE 12
FORM OF SYNDICATION AGREEMENT
THIS AGREEMENT is dated [ ] 2000 between:
(1) [ ] and [ ] (the "OBLIGORS");
(2) [ ] as arrangers (the "ARRANGERS");
(3) [ ], [ ] and
[ ] as existing banks (the "EXISTING BANKS");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as the banks who
wish to become party to the Credit Agreement as Banks
(the "NEW BANKS"); and
(5) ING BANK NV as agent for the Banks under the Original Credit Agreement
(the "FACILITY AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the contrary intention appears or the context
otherwise requires:
1.1.1 "CREDIT AGREEMENT" means the Original Credit Agreement as
amended pursuant to this Agreement;
1.1.2 "EFFECTIVE DATE" means [SYNDICATION DATE]; and
1.1.3 "ORIGINAL CREDIT AGREEMENT" means the euro 1,000,000,000 and
$1,450,000,000 multicurrency credit agreement dated 2 June
2000 between, amongst others, the Obligors, the Arrangers, and
the Facility Agent.
1.2 INCORPORATION OF ORIGINAL CREDIT AGREEMENT INTERPRETATIONS
1.2.1 Terms defined in the Original Credit Agreement shall, unless
the contrary intention appears or the context otherwise
requires, have the same meaning in this Agreement.
1.2.2 Clauses 1.2 (INTERPRETATION), 1.4 (AGREEMENTS AND STATUTES),
37 (REMEDIES AND WAIVERS, PARTIAL INVALIDITY) and 39
(COUNTERPARTS) of the Original Credit Agreement shall apply to
this Agreement as though they were set out in full in this
Agreement, but as if references to the Original Credit
Agreement were construed as references to this Agreement.
2. CONSENT AND CONFIRMATION
The Facility Agent, the Arrangers, the Obligors, the Existing Banks and
the Facility Agent each consent to:
[(a) THE AMENDMENTS SET OUT IN CLAUSE 3 (AMENDMENTS TO THE ORIGINAL
CREDIT AGREEMENT) BELOW AND AGREE THAT THE ORIGINAL CREDIT
AGREEMENT SHALL BE AMENDED, WITH EFFECT FROM THE EFFECTIVE
DATE; AND
(b)] the New Banks becoming Banks,
and confirm that, except as expressly provided by the terms of this
Agreement, each of the Finance Documents shall continue in full force
and effect.
3. [AMENDMENTS TO THE ORIGINAL CREDIT AGREEMENT
Each Obligor has requested the Banks to agree that the Original Credit
Agreement shall be amended as follows:
[ ] ]
4. NOVATION
4.1 NOVATION OF COMMITMENTS AND RELATED RIGHTS AND OBLIGATIONS
On the Effective Date (regardless of whether an Event of Default is then
continuing):
4.1.1 each New Bank will become a Bank under the Credit Agreement
with a Term A Commitment, Term B Commitment and a Revolving
Commitment as set out opposite its name in Schedule 1;
4.1.2 each Existing Bank's Term A Commitment, Term B Commitment and
Revolving Commitment shall be reduced down to the respective
amounts set out opposite its name in Schedule 1; and
4.1.3 each New Bank will automatically obtain and assume, and
undertakes to perform, all of the rights and obligations of a
Bank under and in respect of each of the Finance Documents in
respect of the rights and obligations transferred to it under
sub-clauses 4.1.1 and 4.1.2 above, including, without
limitation, its corresponding proportion of the rights and
obligations of the Existing Banks in respect of: [LIST
OUTSTANDING ADVANCES].
4.2 AMOUNTS DUE ON OR BEFORE THE EFFECTIVE DATE
4.2.1 All amounts (if any) payable to the Existing Banks by the
Borrowers on or before the Effective Date (including, without
limitation, all interest and fees payable on the Effective
Date) in respect of any period ending prior to the Effective
Date shall be for the account of the Existing Banks, and none
of the New Banks shall have any interest in, or any rights in
respect of, any such amounts.
4.2.2 If any Advance falls to be made on the Effective Date:
(a) the Facility Agent will promptly notify each of the New
Banks of that fact (and the amount of its participation
in that Advance in accordance with sub-clause 4.2.2(b));
and
(b) each Existing Bank and each New Bank shall participate
in that Advance (subject to the terms of the Credit
Agreement) as if the novation of the Commitments and
rights and obligations under Clauses 4.1.1 and 4.1.2
(NOVATION OF COMMITMENTS AND RELATED RIGHTS AND
OBLIGATIONS) of this Agreement had taken effect prior to
the relevant notice of drawdown before the Effective
Date,
and each Obligor acknowledges that no Existing Bank will be
obliged to participate in any such Advance to any greater
extent.
4.3 ADMINISTRATIVE DETAILS
Each New Bank has delivered to the Facility Agent its initial details
for the purposes of Clause 33 (NOTICES) of the Credit Agreement.
5. NATURE OF THIS AGREEMENT
The novation of Commitments and rights and obligations contemplated by
this Agreement shall take effect (in accordance with its terms) as a
novation so that Clause 34.5 (TRANSFERS BY BANKS) of the Credit
Agreement shall apply to the Commitments, rights and obligations
transferred, assumed and released under Clause 4.1 (NOVATION OF
COMMITMENTS AND RELATED RIGHTS AND OBLIGATIONS) of this Agreement and to
the associated rights and obligations under the Finance Documents, as if
this Agreement were a Transfer Certificate.
6. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
BANKS AND COMMITMENTS
PART A
THE ORIGINAL BANKS
BANKS TERM A TERM B REVOLVING
COMMITMENT COMMITMENT COMMITMENT
(EURO) ($) ($)
AC Financial Services Dublin 200,000,000 230,000,000 60,000,000
Citibank, N.A. 200,000,000 230,000,000 60,000,000
Deutsche Bank AG 200,000,000 230,000,000 60,000,000
ING Bank N.V. 200,000,000 230,000,000 60,000,000
Rabobank International 200,000,000 230,000,000 60,000,000
------------------------- -------------------- -------------------
TOTAL EUR 1,000,000,000 $1,150,000,000 $300,000,000
PART B
THE BORROWERS
NAME OF ORIGINAL BORROWER REGISTERED NO.
Koninklijke Numico N.V. 27090619
Numico Nationaal B.V. 27128983
Nutricia International B.V. 27112523
Pharmafood B.V. 08020001
PART C
THE GUARANTORS
NAME OF ORIGINAL GUARANTOR REGISTERED NO.
Koninklijke Numico N.V. 27090619
Nutricia International B.V. 27112523
Numico Nationaal B.V. 27128983
Pharmafood B.V. 08020001
SIGNATORIES TO SYNDICATION AGREEMENT
THE OBLIGORS
ARRANGERS
NEW BANKS
[ ]
By:..........................
FACILITY AGENT
ING BANK N.V.
By:..........................
SIGNATURES
THE PARENT
KONINKLIJKE NUMICO N.V.
By: /s/ PH. T. VAN RANDWIJK
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
THE ORIGINAL BORROWERS
KONINKLIJKE NUMICO N.V.
By: /s/ PH. T. VAN RANDWIJK
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
NUMICO NATIONAAL B.V.
By: /s/ PH. T. VAN RANDWIJK
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
NUTRICIA INTERNATIONAL B.V.
By: /s/ PH. T. VAN RANDWIJK
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
PHARMAFOOD B.V.
By: /s/ PH. T. VAN RANDWIJK
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
THE ORIGINAL GUARANTORS
KONINKLIJKE NUMICO N.V.
By: /s/ PH. T. VAN RANDWIJK
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
NUMICO NATIONAAL B.V.
By: /s/ PH. T. VAN RANDWIJK
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
NUTRICIA INTERNATIONAL B.V.
By: /s/ PH. T. VAN RANDWIJK
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
PHARMAFOOD B.V.
By: /s/ PH. T. VAN RANDWIJK
Address: Rokkeveenseweg 49
2712 PJ Zoetermeer
The Netherlands
Fax: +31 79 353 9671
Attention: General Counsel
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
ING BANK N.V.
By: /s/ N.J. KLEIN
/s/ W. MEISS
Address: Bijlmerplein 888
P.O. Box 1800
1000 BV Amsterdam
The Netherlands
Fax: +31 20 652 2030
Attention: N.J. Klein
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
(TRADING AS RABOBANK INTERNATIONAL)
By: /s/ JULIAN LEWRY
Address: Croeselaan 18
3521 CB Utrecht
The Netherlands
Fax: + 3130 216 2767
Attention: Joost Verheijen
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:
FORTIS BANK N.V.
By: /s/ JOHN STAFFORD
Address: Montagne du Parc 3
B-1000 Brussels
Belgium
Fax: +32 (0)2 565 3763
Attention: Marie-Victoire Vranekx
THE FACILITY AGENT
ING BANK NV
By: /s/ N.J. KLEIN
/s/ W. MEISS
Address: Bijlmerplein 888
P.O. Box 1800
1000 BV Amsterdam
The Netherlands
Fax: +31 20 576 8782
Attention: Ms. Johanna ten Veen/HE 0306
THE ORIGINAL BANKS
CITIBANK, N.A.
By: /s/ JOHN STAFFORD
Address: 336 Strand
London WC2R 1HB
UK
Fax: +44 (0)20 7500 0655
Attention:
DEUTSCHE BANK AG
By: /s/ SUSANNE BALTES
/s/ JOS VAN HELDEN
Address: Herengracht 450-454
1017 CA Amsterdam
The Netherlands
Fax: +31 20 620 8389
Attention: Mrs Susanne Baltes
ING BANK N.V.
By: /s/ N.J. KLEIN
/s/ W. MEISS
Address: Bijlmerplein 888
P.O. Box 1800
1000 BV Amsterdam
The Netherlands
Fax: +31 20 565 1020
Attention: D. I. Hiel/HE 0109
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
(TRADING AS RABOBANK INTERNATIONAL)
By: /s/ JULIAN LEWRY
Address: Croeselaan 18
3521 CB Utrecht
The Netherlands
Fax: + 3130 216 2767
Attention: Joost Verheijen
AC FINANCIAL SERVICES DUBLIN
By: /s/ JOHN STAFFORD
Address: 5th Floor
Plaza 2 Custom House Plaza
I.F.S.C. Dublin 1
Ireland
Fax: +35 31 670 0854
Attention: Yvan Fonck