-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Kwu+qe1sPH6e7Qd92UWHOE89vzRU+G28Ia00M6VVPUX6wOXmThAkE3EFDMzeywz5 QCaCS67zOLBvuzOhh/oaWQ== /in/edgar/work/20000601/0000912057-00-027075/0000912057-00-027075.txt : 20000919 0000912057-00-027075.hdr.sgml : 20000919 ACCESSION NUMBER: 0000912057-00-027075 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000601 GROUP MEMBERS: KONINKLIJKE NUMICO NV GROUP MEMBERS: NUTRICIA FLORIDA, INC. GROUP MEMBERS: NUTRICIA FLORIDA, L.P. GROUP MEMBERS: NUTRICIA INTERNATIONAL B.V. GROUP MEMBERS: NUTRICIA INVESTMENT CORP. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: REXALL SUNDOWN INC CENTRAL INDEX KEY: 0000901620 STANDARD INDUSTRIAL CLASSIFICATION: [2834 ] IRS NUMBER: 591688986 STATE OF INCORPORATION: FL FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: SEC FILE NUMBER: 005-49369 FILM NUMBER: 647930 BUSINESS ADDRESS: STREET 1: 6111 BROKEN SOUND PARKWAY N W CITY: BOCA RATON STATE: FL ZIP: 33487 BUSINESS PHONE: 5612419400 MAIL ADDRESS: STREET 1: 6111 BROKEN SOUND PARKWAY NW CITY: BOCA RATON STATE: FL ZIP: 33487 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KONINKLIJKE NUMICO NV CENTRAL INDEX KEY: 0001089936 STANDARD INDUSTRIAL CLASSIFICATION: [0000 ] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: P.O. BOX 1 STREET 2: 2700 MA ZOETERMEER CITY: AMSTERDAM BUSINESS PHONE: 01131793539607 MAIL ADDRESS: STREET 1: P.O. BOX 1 STREET 2: 2700 MA ZOETERMEER CITY: AMSTERDAM SC TO-T/A 1 scto-ta.txt SC TO-T/A - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------- SCHEDULE TO/A (RULE 14d-100) TENDER OFFER STATEMENT UNDER TO SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 3) ----------- REXALL SUNDOWN, INC. (NAME OF SUBJECT COMPANY) NUTRICIA INVESTMENT CORP. NUTRICIA FLORIDA, L.P. NUTRICIA FLORIDA, INC. NUTRICIA INTERNATIONAL B.V. KONINKLIJKE NUMICO N.V. (ROYAL NUMICO) (NAMES OF FILING PERSONS) COMMON STOCK, PAR VALUE $.01 PER SHARE (TITLE OF CLASS OF SECURITIES) 761648104 (CUSIP NUMBER OF CLASS OF SECURITIES) JULITTE VAN DER VEN NUTRICIA INVESTMENT CORP. C/O GUY SNYDER, ESQ. VEDDER, PRICE, KAUFMAN & KAMMHOLZ 222 NORTH LASALLE STREET CHICAGO, ILLINOIS 60601 TELEPHONE: (312) 609-7500 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS) COPIES TO: GUY E. SNYDER, ESQ. STEVEN J. GRAY, ESQ. VEDDER, PRICE, KAUFMAN & KAMMHOLZ 222 NORTH LASALLE STREET CHICAGO, ILLINOIS 60601 (312) 609-7500 ------------- / / Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: N/A Filing Party: N/A Form or Registration No.: N/A Date Filed: N/A / / Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: /X/ third-party tender offer subject to Rule 14d-1. / / issuer tender offer subject to Rule 13e-4. / / going-private transaction subject to Rule 13e-3. / / amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: / / - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- This Amendment No. 3 amends and supplements the Tender Offer Statement on Schedule TO, as amended ("Schedule TO") filed May 5, 2000 relating to the offer by Nutricia Investment Corp. (the "Purchaser"), a Florida corporation and an indirect wholly owned subsidiary of Koninklijke Numico ("Numico"), a company incorporated under the laws of the Netherlands, to purchase all of the issued and outstanding shares of common stock, par value $0.01 per share (the "Common Stock"), of Rexall Sundown, Inc. (the "Company"), at a price of $24.00 per share of Common Stock, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 5, 2000 (the "Offer to Purchase") and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). All capitalized terms used herein and not defined herein shall have the meanings set forth in the Offer to Purchase. ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Section 13 of the Offer to Purchase is hereby deleted and replaced with the following: The Offer is not conditioned upon the obtaining of any financing arrangements. The Purchaser estimates that the total amount of funds required to purchase all of the outstanding Shares on a fully diluted basis pursuant to the Offer and the Merger, to pay related fees and expenses of Numico and the Purchaser and to effect the Merger will be approximately $1.8 billion. The Purchaser will obtain these funds from Numico, either directly or indirectly via Nutricia LP, Nutricia, Inc. and/or Nutricia International, and/or any other wholly owned subsidiary of Numico through loans, advances or capital contributions. Numico has received commitment letters, dated May 31, 2000, to borrow EUR 1,050,000,000 under a short term bridge facility (the "Bridge Facility") and EUR 1,000,000,000 and US $1,450,000,000 under a long term credit facility (the "Long Term Facility"), respectively, in order to, among other things, finance the acquisition of the Shares in the Offer and pay all fees and expenses in connection therewith. The commitment letter for the Bridge Facility has been executed by and among Numico and Salomon Brothers International Limited ("SBIL"), Deutsche Bank AG ("Deutsche Bank") and ING Bank N.V. ("ING") as arrangers, and Deutsche Bank, ING and Citibank, N.A. ("Citibank") as underwriters. The commitment letter for the Long Term Facility has been executed by and among Numico and SBIL, Deutsche Bank, ING, Fortis Bank N.V. ("Fortis") and Rabobank International ("Rabobank") as arrangers, and Deutsche Bank, ING, Rabobank, Citibank and AC Financial Services Dublin ("AC Financial") as underwriters. Copies of both commitment letters, including the summaries of the terms and conditions of the respective facilities, have been filed with the SEC as exhibits to Schedule TO and are incorporated herein by reference and the following summary is qualified in its entirety by reference to such commitment letters. Advances under the Bridge Facility will be made in Euros and will bear interest at a rate per annum equal to EURIBOR plus 0.75%. The Bridge Facility will terminate on or before July 31, 2000 and any outstanding balance will be repaid with the proceeds of an offering of approximately EUR 1,150,000,000 of ordinary shares and subordinated convertible bonds of Numico (of which approximately EUR 450,000,000 will be ordinary shares). The Long Term Facility will be divided into three tranches. Tranche A will consist of a committed EUR 1,000,000,000 364-day term loan with a one year extension option. Tranche B will consist of a committed US $1,150,000,000 five-year amortizing term loan. Tranche C will consist of a committed US $300,000,000 five-year amortizing term loan. Borrowing under Tranches B and C can be made in U.S Dollars or its equivalent in Euro, or any other freely available euro-currency, provided that only Euros and pounds sterling are available under Tranche C. In addition to funding the acquisition of Shares in the Offer, the Long Term Facility is to be used (i) to refinance existing indebtedness of Numico, the Company and their respective subsidiaries and (ii) for general corporate purposes. Advances under the Long Term Facility will bear interest at a rate per annum equal to EURIBOR (or, if in currencies other than Euro, LIBOR) plus the applicable margin, which until the later of either three months from the execution of the definitive loan document or the day the Equity Package has been completed shall be 0.75% per annum. Thereafter, the applicable margin shall be 0.55% per annum. In addition, the applicable margin will be subject to adjustment within a range of 0.40% to 0.50% per annum depending on Numico's ratio of senior net debt to EBITDA. From June 9, 2000 until December 31, 2000, the arrangers and the underwriters reserve the right to syndicate all or a portion of their commitment to one or more other financial institutions. 2 The commitments for both the Bridge Facility and the Long Term Facility are subject to certain conditions, including (i) execution of definitive financing documentation; (ii) the absence, in the opinion of the respective arrangers and underwriters, of any material adverse change in (A) the business, financial condition or prospects of Numico or Numico and its subsidiaries taken as a whole since December 31, 1999 and (B) the loan syndication, financial or capital market conditions generally that, in the opinion of the respective arrangers and underwriters, would materially impair syndication of the facility; (iii) the accuracy and completeness in all material respects of the factual information which has been or will be provided to each of the respective arrangers and underwriters and compliance with the Commitment Documents (as defined in each commitment letter); and (iv) the payment of all fees and expenses. The commitments terminate on (a) the earlier of the execution of definitive agreements and June 9, 2000, if the Offer is not extended and (b) the earlier of the execution of definitive agreements and 21 business days after June 3, 2000, if the Offer is extended. Final documentation for the facilities is expected to include customary conditions, covenants and events of default. Numico has agreed to pay the arrangers and underwriters certain fees in connection with their respective commitment letter and facility which Numico believes to be customary. ITEM 12. MATERIAL TO BE FILED AS EXHIBITS Item 12 is hereby amended and supplemented by adding the following: (b)(1) Arrangers' Commitment Letter dated May 31, 2000 relating to the EUR 1,050,000,000 short term bridge facility. (b)(2) Arrangers' Commitment Letter dated May 31, 2000 relating to the EUR 1,000,000,000 and US $1,450,000,000 credit facility. 3 SIGNATURES After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 1, 2000 KONINKLIJKE NUMICO N.V. By: /s/ Johannes C.T. van der Wielen ---------------------------------------------- Name: Johannes C.T. van der Wielen Title: President and Chief Executive Officer NUTRICIA INVESTMENT CORP. By: /s/ Julitte van der Ven ---------------------------------------------- Name: Julitte van der Ven Title: President NUTRICIA FLORIDA, L.P. By: Nutricia Florida, Inc., its general partner By: /s/ Julitte van der Ven ---------------------------------------------- Name: Julitte van der Ven Title: President NUTRICIA FLORIDA, INC. By: /s/ Julitte van der Ven ---------------------------------------------- Name: Julitte van der Ven Title: President NUTRICIA INTERNATIONAL B.V. By: /s/ Johannes C.T. van der Wielen ---------------------------------------------- Name: Johannes C.T. van der Wielen Title: President and Chief Executive Officer 4 EXHIBIT INDEX Exhibit Number Description - ------ ----------- (b)(1) Arrangers' Commitment Letter dated May 31, 2000 relating to the EUR 1,050,000,000 short term bridge facility. (b)(2) Arrangers' Commitment Letter dated May 31, 2000 relating to the EUR 1,000,000,000 and US $1,450,000,000 credit facility. 5 EX-99.(B)(1) 2 ex-99b1.txt EXHIBIT 99 (B)(1) ARRANGERS' COMMITMENT LETTER 31 May 2000 Koninklijke Numico N.V. Rokkeveenseweig 49 2712 PJ Zoetermeer PO Box 1 Zoetermeer The Netherlands Attention: Philip van Randwijk Dear Sirs, EURO 1,050,000,000 SHORT TERM BRIDGE FACILITY (THE "FACILITY") COMMITMENT LETTER You have advised us that Koninklijke Numico N.V. (the "PARENT") desires to establish the Facility, the proceeds of which will be used by the Parent as a bridge loan for: (a) the proposed issue of new ordinary shares in the Parent for an amount of approximately Euro 450,000,000 (the "EQUITY ISSUE"); and (b) the Euro denominated convertible subordinated bonds convertible into depositary receipts of shares of and issued by the Parent in a principal amount of approximately Euro 700,000,000 (the "CONVERTIBLE BOND"). 1. COMMITMENT TERMS. Deutsche Bank AG ("DEUTSCHE BANK"), ING Bank N.V. ("ING") and Salomon Brothers International Limited ("SBIL") (each an "ARRANGER" and together the "ARRANGERS") are pleased to inform you of each of their agreement to act as arrangers of the Facility and ING, Deutsche Bank and Citibank, N.A. ("CITIBANK") are pleased to inform you of their commitments to provide, either by themselves or by one of their affiliates (as set out below) (each an "UNDERWRITER" and together the "UNDERWRITERS"), the entire amount of the Facility, subject to the terms and conditions described in this Commitment Letter and the attached Summary of Terms and Conditions (the "TERMS AND CONDITIONS"). This Commitment Letter should be read in conjunction with the fee letter (the "FEE LETTER") and the agency fee letter (the "AGENCY FEE LETTER") each dated the same date as this Commitment Letter (together the "FEE LETTERS"). This Commitment Letter, the Terms and Conditions, the Fee Letter and the Agency Fee Letter are referred to collectively as the "COMMITMENT DOCUMENTS". Terms defined in the Terms and Conditions shall unless otherwise defined, have the same meaning herein. Each Underwriter severally commits to underwrite the amount set forth below:
UNDERWRITER FACILITY Citibank Euro 350,000,000 Deutsche Bank Euro 350,000,000 ING Euro 350,000,000 TOTAL Euro 1,050,000,000
The commitment of each Underwriter is several and failure by one Underwriter to perform its obligations hereunder shall not prejudice the rights of any other Underwriter. Each Underwriter may, except as otherwise stated, enforce its rights separately. No Underwriter shall be responsible for the obligations of any other Underwriter. 2. CONDITIONS PRECEDENT. Each of the Arrangers' respective agreement and each of the Underwriters' respective commitment hereunder is subject to: (i) the preparation, execution and delivery of mutually acceptable loan documentation, including a credit agreement (the "CREDIT AGREEMENT") incorporating, INTER ALIA, the terms and conditions outlined in the Terms and Conditions (which set out the material commercial terms of the Credit Agreement); (ii) in the Arrangers' and the Underwriters' collective opinion, the absence of a material adverse change in (A) the business, financial condition or prospects of the Parent or the Parent and its subsidiaries taken as a whole since 31 December 1999 and (B) the loan syndication, financial or capital market conditions generally that, in the Arrangers' and the Underwriters' collective opinion, would materially impair syndication of the Facility; (iii) the accuracy and completeness in all material respects of the factual information contained in the package of written information provided to each of the Arrangers and the Underwriters and of all written factual information provided to the Arrangers and the Underwriters hereafter and your compliance with the terms of the Commitment Documents; (iv) the payment in full of all fees, expenses and other amounts due and payable under the Fee Letters; and (v) in the opinion of each Arranger and each Underwriter satisfactory arrangements have been put in place in relation to the Equity Issue and the Convertible Bond. 3. COMMITMENT TERMINATION. Each Arrangers' respective agreement and each Underwriters' respective commitment set forth under paragraph 1 of this Commitment Letter will terminate on (a) if the Offer is not extended, the earlier of the execution of the Credit Agreement and 9 June 2000 and (b) if the Offer is extended, the earlier of the execution of the Credit Agreement and 21 Business Days after 3 June 2000. Prior to such date, this Commitment Letter may be terminated (i) by you at any time at your option after payment of all fees, expenses and other amounts then payable under the Commitment Documents or (ii) by the Arrangers and the Underwriters if the Arrangers and the Underwriters believe collectively that any condition set forth in paragraph 2 can no longer be satisfied. The provisions of the Fee Letter and paragraphs 3, 4, 5 and 7 shall survive the expiration or termination of this Commitment Letter. 2 4. INDEMNIFICATION. 4.1 Whether or not the Facility is consummated you hereby indemnify and agree to hold harmless each Arranger, each Underwriter and each of their affiliates and each of their respective officers, directors, employees, agents, advisors and representatives (each, an "INDEMNIFIED PARTY") from and against any and all claims, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party by reason of that party acting in its capacity as an Arranger or Underwriter (as the case may be), in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defence with respect thereto (each a "PROCEEDING"), arising out of or in connection with or relating to the Commitment Documents, whether or not such investigation, litigation or proceeding is brought by you, any of your shareholders or creditors, an Indemnified Party or any other person, or an Indemnified Party is otherwise a party thereto, except to the extent such claim, damage, loss, liability, cost or expense results from such Indemnified Party's negligence, wilful misconduct or any breach of the Commitment Documents by the Indemnified Party. 4.2 Any Indemnified Party intending to invoke paragraph 4.1 shall give prompt notice in writing to you upon it becoming aware of any actual or potential claim, damage, loss, cost or expense, and you 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 (i) you give prompt notice in writing of your intention to give such directions to the Indemnified Party, (ii) you give such directions taking into account at all times the business sensitivities and franchise position of the Indemnified Party and (iii) you do not give directions in respect of regulatory or supervisory proceedings of any governmental authority or other similar proceedings. 4.3 No Indemnified Party shall settle, compromise, consent to the entry of any judgement in or otherwise seek to terminate (each a "SETTLEMENT") any such proceeding without your prior written consent (such consent not to be unreasonably withheld or delayed, taking into account without limitation the cost to you 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 you and that Indemnified Party of not settling). You shall not be liable to indemnify any Indemnified Party for any settlement of any proceeding made or effected without your prior written consent. 4.4 You will lose your right to give directions in relation to any proceedings if (i) you breach any obligations hereunder or (ii) at the written request of the Indemnified Party, and in respect of (ii) your obligation to indemnify the Indemnified Party will cease on the date of such request. 4.5 You further agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to you or any of your shareholders or creditors for or in connection with the transactions referred to above, except to the extent such liability results 3 from such Indemnified Party's negligence, wilful misconduct or any breach of the Commitment Documents by the Indemnified Party. 4.6 The Contracts (Rights of Third Parties) Act 1999 shall only apply to this paragraph 4 and only for the benefit of the Indemnified Parties. 5. CONFIDENTIALITY. 5.1 You agree that the Commitment Documents are for your confidential use only and that neither their existence nor the terms thereof will be disclosed by you to any person other than your officers, directors, employees, accountants, lawyers and other advisors, or those parties (and their officers, directors, employees, accountants, lawyers and other advisors) involved in the Project Planet negotiations, and then only on a "need to know" basis in connection with the transactions contemplated thereby and on a confidential basis. Notwithstanding the foregoing, following your return of your executed copies of the Commitment Documents to the Agent as provided below, you may make such other public disclosures of the terms and conditions hereof as (i) you are required by applicable law or regulation (whether of the Amsterdam Stock Exchange or otherwise) to make; (ii) are otherwise publicly available; or (iii) are necessary to maintain your rights under the Commitment Documents. 5.2 You should be aware that each Arranger and/or Underwriter may be providing financing or other services to parties whose interests may conflict with yours. Be assured, however, that consistent with each Arrangers' and each Underwriters' longstanding policy to hold in confidence the affairs of its customers, no Arranger nor any Underwriter will furnish confidential information obtained from you to any of its other customers. By the same token, none of the Arrangers nor any of the Underwriters will make available to you confidential information that it obtained or may obtain from any other customer. 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. You represent and warrant to each Arranger and each Underwriter that (i) all written information provided to each Arranger and each Underwriter, and any further written information provided to each Arranger and each Underwriter after the date hereof by you or your representatives in connection with the transactions contemplated hereby is and will be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were or are made, (ii) all financial projections, (if any), that have been or will be prepared by the Arrangers or the Underwriters and approved by the Parent are based upon assumptions considered by you to be reasonable (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond your control, and that no assurance can be given that the projections will be realised) and (iii) you are not in possession of any information which would result in you concluding that the latest published financial statements of Rexall Sundown Inc. are not true and accurate in any material respect. 7. GOVERNING LAW/JURISDICTION. The Commitment Documents shall be governed by, and construed in accordance with, the laws of England and Wales. The parties hereto 4 submit to the non-exclusive jurisdiction of the English court and waive any defence of inconvenient forum which may be available. 8. ENTIRE AGREEMENT. The Commitment Documents set forth the entire agreement between the parties with respect to the matters addressed therein and supersede all prior communications, written or oral, with respect thereto and may only be modified in writing. Delivery of an executed signature page to any Commitment Document by facsimile shall be as effective as delivery of a manually executed document. Please indicate your acceptance of the provisions hereof by signing the enclosed copy of this Commitment Letter, the Fee Letter and the Agency Fee Letter and returning them to Digna Hiel at ING Bank N.V. at or before 5:00 p.m. (London time) on 31 May 2000, the time at which the commitment offer of each Underwriter set forth above (if not so accepted prior thereto) will expire. If you elect to deliver the above documents by facsimile, please arrange for the executed originals to follow by next-day courier. Yours faithfully, DEUTSCHE BANK AG ING BANK N.V. By: /s/ Olivir Cebelieu By: /s/ Digna Hiel --------------------------- ------------------------------- Title: Vice President Title: Assistant Director By: /s/ Goetz Laue By: /s/ N.J. Klein --------------------------- ------------------------------- Title: Director Title: Senior Relationship Manager SALOMON BROTHERS INTERNATIONAL LIMITED (AS ARRANGER) CITIBANK, N.A. (AS UNDERWRITER) By: /s/ John Stafford By: /s/ John Stafford --------------------------- ------------------------------ Title: Director Title: Vice President We agree and accept the above. KONINKLIJKE NUMICO N.V. By: /s/ A.H. Eenink -------------------------- Title: Director Date: 31 May 2000 5 PROJECT PLANET KONINKLIJKE NUMICO N.V. BRIDGE LOAN SUMMARY OF TERMS AND CONDITIONS BORROWERS: Koninklijke Numico N.V. (the "PARENT"), Nutricia International B.V., Numico Nationaal B.V. and Pharmafoods B.V. GUARANTORS: Koninklijke Numico N.V., Nutricia International B.V., Numico Nationaal B.V. and Pharmafoods B.V. AMOUNTS: Euro 1,050,000,000. FACILITY: A committed Euro 1,050,000,000 bridge loan maturing on 31 July 2000. PURPOSE: To serve as a bridge loan for the Equity Issue and the Convertible Bond in an aggregate amount of Euro 1,050,000,000. ARRANGERS: Deutsche Bank AG, ING Bank N.V. and Salomon Brothers International Ltd. UNDERWRITERS AND LENDERS: Citibank, N.A., Deutsche Bank AG and ING Bank N.V. AGENT: ING Bank N.V. MATERIAL SUBSIDIARIES: Subsidiaries of the Parent (direct or indirect) whose gross assets or net sales represent not less than 5% of the consolidated gross assets or, as the case may be, consolidated net sales of the Group. CLOSING DATE: The date on which the loan documentation is to be signed, anticipated to occur on or prior to 9 June 2000. COMMITMENT TERMINATION DATE: 10 days from the Closing Date or such later date as may be agreed for the purposes of the Offer. Any commitments undrawn by that date will be cancelled. FINAL MATURITY DATE: 31 July 2000. BORROWINGS: Advances shall be in minimum principal amounts of Euro 100,000,000 or, if greater, integral multiples of Euro 50,000,000. All Advances shall be made by the Lenders rateably in proportion to their respective commitments. Advances will be available upon notice periods to be agreed. No more than two separate Advances may be outstanding at any time. APPLICABLE MARGIN: 0.75% p.a. INTEREST RATES: Advances will bear interest at a rate per annum equal to Euribor plus the Applicable Margin plus mandatory costs. Euribor shall be determined by reference to the relevant Telerate screen or, if not available, as quoted by the Reference Banks for Euro for the relevant interest period, averaged and rounded up to 4 decimal places. REFERENCE BANKS: Citibank, N.A., Deutsche Bank AG and ING Bank N.V. INTEREST PERIODS: One or two weeks or at least 3 days at the Borrower option or such other periods as agreed by the Agent provided that no Interest Period shall end after the Final Maturity Date. INTEREST PAYMENTS: Interest on Advances will be payable in arrears at the end of each Interest Period. Interest to be computed on a 360 day basis and the actual number of days elapsed. OPTIONAL COMMITMENT A Borrower will have the right, upon at REDUCTION: least 5 business days' notice, to terminate or cancel, in whole or in part, the unused portion of the Facility, provided that each partial reduction shall be in an amount of Euro 100,000,000 or an integral multiple of Euro 50,000,000. Commitment reductions shall be applied rateably to all Lenders' Commitments. Once terminated, a Commitment cannot be reinstated. OPTIONAL PREPAYMENTS: Advances may be prepaid without penalty, in an amount of Euro 100,000,000 or integral multiples of Euro 50,000,000 on 5 business days' notice, subject to reimbursement by the relevant Borrower for any broken funding losses suffered by the Lenders. Prepayments shall be applied rateably to all Lenders' Advances in respect of the Facility. If any amount of the Facility is prepaid, no part thereof may be reborrowed. MANDATORY PREPAYMENT: The net proceeds of the Equity Issue and the Convertible Bond shall be used to prepay the Loan. Also, a Borrower shall prepay in full upon a change of control. 2 ARRANGEMENT FEE: As set forth in the Fee Letter between the Arrangers, the Underwriters and the Parent. ANNUAL AGENCY FEE: As set forth in the Agency Fee Letter between the Agent and the Parent. LOAN DOCUMENTATION: The Facility will be subject to preparation, execution and delivery of mutually acceptable loan documentation which will contain conditions precedent, representations and warranties, covenants, events of default and other provisions customarily found in the standard loan documentation for similar financings but based upon the Parent's existing syndication loan documentation entered into in November 1999 together, in relation to the US acquisition provisions, with the provisions of the syndicated loan agreement dated August 1999 where appropriate, including, but not limited to, those set out below. Thresholds and baskets for covenants to be agreed in the light of Project Planet. CONDITIONS PRECEDENT TO INITIAL - Payment of all accrued fees and ADVANCE: expenses in accordance with the provisions of the Fee Letter. - The execution and delivery of the following, in form and substance satisfactory to the Lenders: (i) board resolutions or other evidence of corporate authorisation; (ii) authorised signatory list; and (iii) legal opinions from counsel for the Borrower and counsel for the Arrangers. - Copy of all Offer Documents and confirmation that no amendments or waivers thereto in respect of extension of offer period, change in offer price and acceptance levels. - Certificate of Parent relating to Project Planet in a form to be agreed (including confirmation of the purchase of a majority of the Common Stock of Rexall Sundown Inc.). - Constitutive documents of Obligors. - Receipt of relevant consents, regulatory and corporate approvals. - Process Agent Letters. 3 - Confirmation of the cancellation and repayment of the existing syndicated facility. CONDITIONS PRECEDENT TO ALL - All repeated representations and DRAWINGS: warranties are true on and as of the date of the drawing/rollover of the Advance, before and after giving effect to such and to the application for the proceeds therefrom, as though made on and as of such date. - No Event of Default or Potential Event of Default has occurred and is continuing, or would result from the drawing of new Advances. REPRESENTATIONS AND WARRANTIES: - Legal status. - Corporate powers. - Authorisations. - Binding obligations. - Legality and contraventions. - Borrowing limit. - No Event of Default or Potential Event of Default. - Ranking and obligations. - Stamp Duty. - Accounts. - Litigation. - No default. - Change in Business Condition. - Encumbrances. - Written Information. - Winding up. 4 - Environmental Compliance. - Environmental Claims. - Licences and Consents. - No deduction or withholding. - Ownership of the Borrowers. - Acquisition funding - Acquisition terms - Use of proceeds - Intellectual property - Clean up period - Certain representations to be repeated from time to time. COVENANTS: - Ranking of Obligations. - Legality of Performance. - Negative Pledge. - Disposal of Assets. - Acquisitions. - Carry on Business. - Compliance with laws. - Insurance. - Variation or waiver. - Offer. - Use of proceeds. - Intellectual property. 5 - Issuer of Convertible Bonds will be the Parent and subordination thereof. - Information. - Notification of Events of Default. - Material Litigation. - Environmental Compliance. - No incurrence of Additional Indebtedness in the Group in excess of the sum of (i) Euro 100,000,000 and (ii) the Convertible Bond. EVENTS OF DEFAULT: - Non-payment - Specific Covenants. - Other defaults. - Untrue Statements. - Cross Default. - Insolvency and Reorganisation. - Enforcement of Security. - Attachment or distress. - Inability to pay debts - Insolvency equivalence. - Unlawfulness or repudiation. - Material adverse change. - Litigation. - Approvals and authorisations. - Validity. 6 OTHER: Loan documentation will include: - Indemnification of Agent and Lenders and their respective affiliates, officers, directors, employees, agents and advisors. - Set off. - Illegality. - Customary agency language. - Majority Lenders will be defined as those holding at least 66-2/3% of outstandings or, if none, Commitments. TRANSFERS AND PARTICIPATIONS: Each Lender will have the right, with the prior consent of the Parent, to transfer or assign all or part of its rights or obligations under the Facility to any third party. Each Lender will also have the right, without notice to or consent of the Parent, to transfer or assign all or part of its rights or obligations under the loan documentation to any of its affiliates or to any third party upon the occurrence of an Event of Default which is continuing. YIELD PROTECTION: All payments made free and clear of any present or future taxes, withholdings or other deductions whatsoever imposed or withheld in the Netherlands or any jurisdiction in or through which payments are made (other than income taxes in the jurisdiction of the Lender's applicable lending office). The Borrower will indemnify the Lenders and the Agent for such taxes paid by the Lenders or the Agent. Yield protection for increased capital and liquidity costs and broken funding costs will also be included. GOVERNING LAW AND JURISDICTION: The Facility will be governed by the laws of England and the parties will submit to the non-exclusive jurisdiction of the English courts. COUNSEL TO THE ARRANGERS: Clifford Chance. EXPENSES: All reasonable costs and expenses incurred (i) by the Agent and/or the Arrangers in connection with the preparation, execution, delivery, modification, amendment, syndication 7 and administration of the loan documentation (including reasonable fees and expenses of counsel to the Agent) or (ii) by the Agent, the Arrangers or any Lender in connection with the enforcement of the loan documentation (including reasonable fees and expenses of counsel), are for the Borrower's account. 8 EX-99.(B)(2) 3 ex-99b2.txt EXHIBIT 99(B)(2) ARRANGERS' COMMITMENT LETTER 31 May 2000 Koninklijke Numico N.V. Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Attention: Philip van Randwijk Dear Sirs, EURO 1,000,000,000 AND US$1,450,000,000 CREDIT FACILITY (INCORPORATING A EURO 1,000,000,000 364 DAY TERM LOAN WITH A ONE YEAR EXTENSION OPTION, A US$1,150,000,000 FIVE YEAR TERM LOAN AND A US$300,000,000 FIVE YEAR REVOLVING CREDIT FACILITY (THE "FACILITY"). COMMITMENT LETTER You have advised us that Koninklijke Numico N.V. (the "PARENT") desires to establish the Facility, the proceeds of which will be used by the Parent or any of the Parent's wholly-owned subsidiaries (the "PARENT GROUP") to finance the acquisition of Rexall Sundown, Inc. ("PROJECT PLANET") and/or to refinance existing indebtedness of the Parent Group and Rexall Sundown Inc. and its subsidiaries and for general corporate purposes (including, but not limited to, the reorganisation of the Dutch subsidiaries of the Parent). 1. COMMITMENT TERMS. Deutsche Bank AG ("DEUTSCHE BANK"), Fortis Bank N.V. ("FORTIS"), ING Bank N.V. ("ING"), Rabobank International ("RABOBANK") and Salomon Brothers International Limited ("SBIL") (each an "ARRANGER" and together the "ARRANGERS") are pleased to inform you of each of their agreement to act as arrangers of the Facility and AC Financial Services Dublin ("AC FINANCIAL"), ING, Deutsche Bank, Rabobank and Citibank, N.A. ("CITIBANK") are pleased to inform you of their commitments to provide, either by themselves or by one of their affiliates (as set out below) (each an "UNDERWRITER" and together the "UNDERWRITERS"), the entire amount of the Facility, subject to the terms and conditions described in this Commitment Letter and the attached Summary of Terms and Conditions (the "TERMS AND CONDITIONS"). This Commitment Letter should be read in conjunction with the fee letter (the "FEE LETTER") and the agency fee letter (the "AGENCY FEE LETTER") each dated the same date as this Commitment Letter (together the "FEE LETTERS"). This Commitment Letter, the Terms and Conditions, the Fee Letter and the Agency Fee Letter are referred to collectively as the "COMMITMENT DOCUMENTS". Terms defined in the Terms and Conditions shall unless otherwise defined, have the same meaning herein. Each Underwriter severally commits to underwrite the amount set forth below:
UNDERWRITER TRANCHE A TRANCHE B TRANCHE C AC Financial Euro 200,000,000 $230,000,000 $60,000,000 Citibank Euro 200,000,000 $230,000,000 $60,000,000 Deutsche Bank Euro 200,000,000 $230,000,000 $60,000,000 ING Euro 200,000,000 $230,000,000 $60,000,000 Rabobank Euro 200,000,000 $230,000,000 $60,000,000 Total Euro 1,000,000,000 $1,150,000,000 $300,000,000
The commitment of each Underwriter is several and failure by one Underwriter to perform its obligations hereunder shall not prejudice the rights of any other Underwriter. Each Underwriter may, except as otherwise stated, enforce its rights separately. No Underwriter shall be responsible for the obligations of any other Underwriter. 2. CONDITIONS PRECEDENT. Each of the Arranger's respective agreements and each of the Underwriter's respective commitments hereunder is subject to: (i) the preparation, execution and delivery of mutually acceptable loan documentation, including a credit agreement (the "CREDIT AGREEMENT") incorporating, INTER ALIA, the terms and conditions outlined in the Terms and Conditions (which set out the material commercial terms of the Credit Agreement); (ii) in the Arrangers' and Underwriters' collective opinion, the absence of a material adverse change in (A) the business, financial condition or prospects of the Parent or the Parent and its subsidiaries taken as a whole since 31 December 1999 and (B) the loan syndication, financial or capital market conditions generally that, in the Arrangers' and Underwriters' collective opinion, would materially impair syndication of the Facility; (iii) the accuracy and completeness in all material respects of the factual information contained in the package of written information provided to each of the Arrangers and Underwriters and of all written factual information provided to the Arrangers and Underwriters hereafter and your compliance with the terms of the Commitment Documents; and (iv) the payment in full of all fees, expenses and other amounts due and payable under the Fee Letters. 3. SYNDICATION. 3.1 The Arrangers and the Underwriters reserve the right from 9 June 2000, such date being the "SYNDICATION DATE", until the earlier of the date upon which the Arrangers and the Underwriters declare that syndication has closed or 31 December 2000, such date being the "SYNDICATION CLOSING DATE", to syndicate all or a portion of their commitment to one or more other financial institutions (the financial institutions becoming parties to the Credit Agreement being collectively referred to herein as the "LENDERS"). 3.2 The Arrangers will act as arrangers with respect to the Facility and will manage all aspects of the syndication in consultation with you. You understand that the Arrangers intend to commence syndication efforts promptly from the Syndication Date. 2 3.3 You agree to take all action as the Arrangers and the Underwriters may reasonably request to assist it in forming a syndicate acceptable to it. Your assistance in forming such a syndicate shall include but not be limited to: (i) making senior management and representatives of you available to participate in information meetings with potential Lenders at such times and places as may be mutually agreed; (ii) using your reasonable efforts to ensure that the syndication efforts benefit from your lending relationships and (iii) providing the Arrangers and the Underwriters with all information of a type commonly provided or made available to successfully complete the syndication of credit facilities including, without limitation, the preparation of an Information Memorandum in respect of the Facility for distribution to potential Lenders. 3.4 To ensure an orderly and effective syndication of the Facility, you agree that until the Syndication Closing Date, you will not, and will not permit any of your subsidiaries to, syndicate or issue, attempt to syndicate or issue, announce or authorise the announcement of the syndication or issuance of, or engage in discussions concerning the syndication or issuance of, any debt facility (including the establishment of a series of bilateral arrangements) or debt securities (including any renewals thereof) in the commercial bank (or capital) markets other than: (i) the proposed Bridge Loan in an amount of Euro 1,050,000,000; (ii) the proposed Convertible Bond in an amount of approximately Euro 700,000,000 (being subordinated to the Facility and with a maturity greater than the Facility); (iii) the renewal of existing overdraft facilities (including in Rexall Sundown, Inc.); (iv) the existing Belgian commercial paper program; or (v) with the prior written consent of the Arrangers. 3.5 You agree that the Arrangers will act as the sole arrangers for the Facility, that ING will act as Facility Agent and as documentation agent and Deutsche Bank and SBIL will act as bookrunners and that no additional arrangers, co-arrangers or agents will be appointed, or other titles conferred, without the Arrangers' consent. You agree that no Lender will receive any compensation of any kind for its participation in the Facility, except as expressly provided for in the Fee Letter, the Agency Fee Letter or in the Terms and Conditions. 3.6 The agreements of the Arrangers and Underwriters hereunder and of any Lender that issues a commitment to provide financing under the Facility are made solely for the benefit of you and may not be relied upon by any other person. 4. MARKET CONDITIONS. You agree that, without prejudice to the provisions hereof, the Arrangers and Underwriters have the right at any time from the date of this Commitment Letter up to and including the Syndication Closing Date to change the pricing and the tenor of the Facility if such change is advisable in the judgment of the Arrangers and the Underwriters to ensure 3 a successful syndication of the Facility (successful syndication being for these purposes that each of the Underwriters as a result of such syndication, has reduced its underwriting commitment to Euro 250,000,000 (or less)). If the Arrangers and Underwriters determine that such changes are necessary, they will consult with you for a period of up to 5 days about such changes. 5. COMMITMENT TERMINATION. Each Arranger's agreement and each Underwriter's commitment set forth under paragraph 1 of this Commitment Letter will terminate on (a) if the Offer is not extended, the earlier of the execution of the Credit Agreement and 9 June 2000 and (b) if the Offer is extended, the earlier of the execution of the Credit Agreement and 21 Business Days after 3 June 2000. Prior to such date, this Commitment Letter may be terminated (i) by you at any time at your option after payment of all fees, expenses and other amounts then payable under the Commitment Documents or (ii) by the Arrangers and Underwriters if the Arrangers and Underwriters believe collectively that any condition set forth in paragraph 2 can no longer be satisfied. The provisions of the Fee Letter and paragraphs 3, 4, 6, 7 and 9 shall survive the expiration or termination of this Commitment Letter. 6. INDEMNIFICATION. 6.1 Whether or not the Facility is consummated you hereby indemnify and agree to hold harmless each Arranger, each Underwriter and each of their affiliates and each of their respective officers, directors, employees, agents, advisors and representatives (each, an "INDEMNIFIED PARTY") from and against any and all claims, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party by reason of that party acting in its capacity as an Arranger or Underwriter (as the case may be), in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defence with respect thereto (each a "PROCEEDING"), arising out of or in connection with or relating to the Commitment Documents, whether or not such investigation, litigation or proceeding is brought by you, any of your shareholders or creditors, an Indemnified Party or any other person, or an Indemnified Party is otherwise a party thereto, except to the extent such claim, damage, loss, liability, cost or expense results from such Indemnified Party's negligence, wilful misconduct or any breach of the Commitment Documents by the Indemnified Party. 6.2 Any Indemnified Party intending to invoke paragraph 1.1 shall give prompt notice in writing to you upon it becoming aware of any actual or potential claim, damage, loss, cost or expense, and you 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 (i) you give prompt notice in writing of your intention to give such directions to the Indemnified Party, (ii) you give such directions taking into account at all times the business sensitivities and franchise position of the Indemnified Party and (iii) you do not give directions in respect of regulatory or supervisory proceedings of any governmental authority or other similar proceedings. 6.3 No Indemnified Party shall settle, compromise, consent to the entry of any judgement in or otherwise seek to terminate (each a "SETTLEMENT") any such proceeding without your 4 prior written consent (such consent not to be unreasonably withheld or delayed, taking into account without limitation the cost to you 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 you and that Indemnified Party of not settling). You shall not be liable to indemnify any Indemnified Party for any settlement of any proceeding made or effected without your prior written consent. 6.4 You will lose your right to give directions in relation to any proceedings if (i) you breach any obligations hereunder or (ii) at the written request of the Indemnified Party, and in respect of (ii) your obligation to indemnify the Indemnified Party will cease on the date of such request. 6.5 You further agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to you or any of your 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 Commitment Documents by the Indemnified Party. 6.6 The Contracts (Rights of Third Parties) Act 1999 shall only apply to this paragraph 6 and only for the benefit of the Indemnified Parties. 7. CONFIDENTIALITY. 7.1 You agree that the Commitment Documents are for your confidential use only and that neither their existence nor the terms thereof will be disclosed by you to any person other than your officers, directors, employees, accountants, lawyers and other advisors, or those parties (and their officers, directors, employees, accountants, lawyers and other advisors) involved in the Project Planet negotiations, and then only on a "need to know" basis in connection with the transactions contemplated thereby and on a confidential basis. Notwithstanding the foregoing, following your return of your executed copies of the Commitment Documents to the Facility Agent as provided below, you may make such other public disclosures of the terms and conditions hereof as (i) you are required by applicable law or regulation (whether of the Amsterdam Stock Exchange or otherwise) to make; (ii) are otherwise publicly available; or (iii) are necessary to maintain your rights under the Commitment Documents. 7.2 You should be aware that each Arranger and/or each Underwriter may be providing financing or other services to parties whose interests may conflict with yours. Be assured, however, that consistent with each Arranger's and each Underwriter's longstanding policy to hold in confidence the affairs of its customers, no Arranger nor any Underwriter will furnish confidential information obtained from you to any of its other customers. By the same token, none of the Arrangers nor any Underwriter will make available to you confidential information that it obtained or may obtain from any other customer. 8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. You represent and warrant to each Arranger and each Underwriter that (i) all written information provided 5 to each Arranger and each Underwriter, and any further written information provided to each Arranger and each Underwriter after the date hereof by you or your representatives in connection with the transactions contemplated hereby is and will be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were or are made, (ii) all financial projections, (if any), that have been or will be prepared by the Arrangers or the Underwriters and approved by the Parent are based upon assumptions considered by you to be reasonable (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond your control, and that no assurance can be given that the projections will be realised) and (iii) you are not in possession of any information which would result in you concluding that the latest published financial statements of Rexall Sundown Inc. are not true and accurate in any material respect. You agree, as close as is reasonably practicable to the Syndication Closing Date, to supplement the information and projections from time to time so that the representations and warranties contained in this paragraph remain correct. 9. GOVERNING LAW/JURISDICTION. The Commitment Documents shall be governed by, and construed in accordance with, the laws of England and Wales. The parties hereto submit to the non-exclusive jurisdiction of the English court and waive any defence of inconvenient forum which may be available. 10. ENTIRE AGREEMENT. The Commitment Documents set forth the entire agreement between the parties with respect to the matters addressed therein and supersede all prior communications, written or oral, with respect thereto and may only be modified in writing. Delivery of an executed signature page to any Commitment Document by facsimile shall be as effective as delivery of a manually executed document. Please indicate your acceptance of the provisions hereof by signing the enclosed copy of this Commitment Letter, the Fee Letter and the Agency Fee Letter and returning them to Digna Hiel at ING Bank N.V. at or before 5:00 p.m. (London time) on 31 May 2000, the time at which the commitment offer of each Underwriter set forth above (if not so accepted prior thereto) will expire. If you elect to deliver the above documents by facsimile, please arrange for the executed originals to follow by next-day courier. Yours faithfully, DEUTSCHE BANK AG ING BANK N.V. By: /s/ Olivier Cebelieu By: /s/ Digna Hiel -------------------------------- ------------------------------- Title: Vice President Title: Assistant Director By: /s/ Goetz Laue By: /s/ N.J. Klein -------------------------------- ------------------------------- Title: Director Title: Senior Relationship Manager 6 SALOMON BROTHERS INTERNATIONAL LIMITED (AS ARRANGER) CITIBANK, N.A. (AS UNDERWRITER) By: /s/ John Stafford By: /s/ John Stafford -------------------------------- ------------------------------- Title: Director Title: Vice President AC FINANCIAL SERVICES DUBLIN FORTIS BANK N.V. (AS ARRANGER) (AS UNDERWRITER) By: /s/ Marie-Victoire Vranckx By: /s/ Marie-Victoire Vranckx -------------------------------- -------------------------------- Title: Deputy Director Title: By Power of Attorney COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. (TRADING AS RABOBANK INTERNATIONAL) By: /s/ Rick Llewellyn By: /s/ Robert Halcrow -------------------------------- -------------------------------- Title: Associate Director Title: Managing Director We agree and accept the above. KONINKLIJKE NUMICO N.V. By: /s/ A.H. Eenink -------------------------------- Title: Director Date: 31 May 2000 7 PROJECT PLANET KONINKLIJKE NUMICO N.V. LONG TERM FACILITY SUMMARY OF TERMS AND CONDITIONS BORROWERS: Koninklijke Numico N.V. (the "PARENT"), Numico Nationaal B.V., Nutricia International B.V., Pharmafoods B.V. and any other wholly owned subsidiaries of the Parent (not including any subsidiaries incorporated in the UK) which it may designate from time to time. GUARANTORS: Koninklijke Numico N.V., Nutricia International B.V., Numico Nationaal B.V., Pharmafoods B.V. and any other wholly owned subsidiaries of the Parent (not including any subsidiaries incorporated in the UK) which it may designate from time to time. AMOUNTS: Euro 1,000,000,000 and US$1,450,000,000 (or its equivalent in euro, or any other freely available euro-currency, subject to all Lenders' availability provided that only euros and pounds sterling are available under Tranche C). FACILITY: The Facility will be divided into three tranches: TRANCHE A: A committed Euro 1,000,000,000 364 day term loan with a one year extension option, (which may be exercised at any time up to 10 days prior to day 364 (the "EXTENSION DATE")), available by way of cash advances ("ADVANCES"). TRANCHE B: A committed $1,150,000,000 5 year amortising term loan, available by way of Advances. TRANCHE C: A committed $300,000,000 5 year revolving credit facility, available by way of Advances. PURPOSE: (1) To finance the acquisition of a majority of the Common Stock of Rexall Sundown Inc. ("PROJECT PLANET"). (2) For refinancing of existing indebtedness of the Parent and its subsidiaries and Rexall Sundown Inc and its subsidiaries. (3) For general corporate purposes including, but not limited to, the refinancing of the Dutch operating subsidiaries. ARRANGERS: Deutsche Bank AG, Fortis Bank N.V., ING Bank N.V., Rabobank International and Salomon Brothers International Ltd. UNDERWRITERS: AC Financial Services Dublin, Citibank, N.A., Deutsche Bank AG, ING Bank N.V. and Rabobank International. FACILITY AGENT AND DOCUMENTATION AGENT: ING Bank N.V. LENDERS: Syndicate of financial institutions acceptable to the Arrangers. MATERIAL SUBSIDIARIES: Subsidiaries of the Parent (direct or indirect) whose gross assets or net sales represent not less than 5% of the consolidated gross assets or, as the case may be, consolidated net sales of the Group. CLOSING DATE: The date on which the loan documentation is to be signed, anticipated to occur on or prior to 9 June 2000. AVAILABILITY PERIOD: (FOR TRANCHE A): 5 months after Closing Date. Any Commitments undrawn by that date will be cancelled. (FOR TRANCHE B): 5 months after Closing Date. Any commitments undrawn by that date will be cancelled. (FOR TRANCHE C): One month prior to the Final Maturity Date. FINAL MATURITY DATE: (FOR TRANCHE A): 364 days from the Closing Date provided that if the extension option is exercised it will be one year after the Extension Date. 2 (FOR TRANCHES B AND C): The earlier of, the fifth anniversary of the Closing Date or the date at least 3 months prior to the maturity date for the proposed Convertible Bond. REPAYMENT SCHEDULE: (FOR TRANCHE B) REPAYMENT DATE AMOUNT Year 1 $225,000,000 Year 2 $225,000,000 Year 3 $225,000,000 Year 4 $225,000,000 Year 5 $250,000,000 Each of the above shall be made in equal semi-annual instalments commencing 6 months after the Closing Date. BORROWINGS: Advances under Tranches A and B shall be in minimum principal amounts of Euro/$100,000,000 (as applicable) or, if greater, integral multiples thereof. Advances under Tranche C shall be in minimum principal amounts of $25,000,000 or integral multiples of $5,000,000. All Advances shall be made by the Lenders rateably in proportion to their respective commitments. After Completion of Syndication, Advances will be available upon notice no later than 10:00 a.m. (Amsterdam time) four business days before the date of drawing. No more than 3 separate Advances may be outstanding at any time under each of Tranches A and B and no more than 10 separate Advances under Tranche C may be outstanding at any time. CURRENCY REVALUATION: If any term loan is outstanding in an optional currency, the outstanding amount will be revalued against the US Dollar amount of the loan at the start of each interest period and an adjustment will be made if the actual amount of the loan exceeds the original US Dollar amount, subject to a tolerance level of 5%. TRANCHE C AVAILABILITY: From the Closing Date and prior to the end of the relevant Availability Period, a Borrower may, subject to the terms of the Facility, borrow, repay and reborrow. APPLICABLE MARGIN: 0.75% p.a. for the period commencing on the Closing Date and ending on the later of either the day falling 3 months 3 after the Closing Date or the day the Equity Package has been completed, thereafter 0.55% p.a. In addition, starting on the date that the Facility Agent receives the audited financial statements for the financial year ending 31 December 2000, the Applicable Margin will be subject to revision (for the avoidance of doubt, by way of an increase as well as a decrease) in relation to outstanding Advances in accordance with the following grid by reference to the most recently delivered financial statements and compliance certificates (tested on a rolling 12 month basis): If Total Senior Net Debt/EBITDA < 3.00:1 greater than or equal to 2.5:1 0.50% p.a. Total Senior Net Debt/EBITDA < 2.5:1 0.40% p.a. INTEREST RATES: Advances will bear interest at a rate per annum equal to EURIBOR (or in currencies other than euro, LIBOR) plus the Applicable Margin plus mandatory costs. EURIBOR, or as the case may be, LIBOR shall be determined by reference to the relevant Telerate screen or, if not available, as quoted by the Reference Banks for the relevant currency and interest period, averaged and rounded up to 4 decimal places. REFERENCE BANKS: ING Bank N.V., together with Deutsche Bank AG and Citibank N.A. INTEREST PERIODS: One, two, three or six months at the relevant Borrower's option or such other periods as agreed by the Facility Agent. The Facility Agent shall determine Interest Periods until the Syndication Closing Date. INTEREST PAYMENTS: Interest on Advances will be payable in arrears at the end of each Interest Period and semi-annually in the case of Interest Periods in excess of 6 months. Interest to be computed on a 360 day basis for US Dollars, Euros and optional currencies (save for pounds sterling where it shall be a 365 day basis) and the number of actual days elapsed. OPTIONAL COMMITMENT A Borrower will have the right, upon at least 5 REDUCTION: business days' notice, to terminate or cancel, in whole or in part, the unused portion of Tranche C, provided that each partial reduction shall be in an amount of $10,000,000 or an integral 4 multiple or $5,000,000. Commitment reductions shall be applied rateably to all Lenders' Commitments. Once terminated, a Commitment cannot be reinstated. REPAYMENTS: Each Tranche C Advance shall be repaid in full at the end of each Interest Period. No Advances will mature after the Final Maturity Date. OPTIONAL PREPAYMENTS: Advances may be prepaid without penalty, in an amount of Euro/$100,000,000 or integral multiples of Euro/$50,000,000 on 5 business days' notice, subject to reimbursement by the relevant Borrower for any broken funding losses suffered by the Lenders. Prepayments shall be applied rateably to all Lenders' Advances in respect of the relevant Tranche. If any amount of Tranches A or B is prepaid, no part thereof may be reborrowed. COMMITMENT FEE: (TRANCHES A, B AND C): 50%of Applicable Margin. Calculated on a 360-day basis and on the unused portion of the Facility, commencing 10 days after the Closing Date in relation to Tranches A and B and on the Closing Date in relation to Tranche C. Payable quarterly in arrears, and on the date of termination of the Commitments. ARRANGEMENT AND As set forth in the Fee Letter between the Arrangers, UNDERWRITING FEE: the Underwriters and the Parent. ANNUAL AGENCY FEE: As set forth in the Agency Fee Letter between the Facility Agent and the Parent. LOAN DOCUMENTATION: The Facility will be subject to preparation, execution and delivery of mutually acceptable loan documentation which will contain conditions precedent, representations and warranties, covenants, events of default and other provisions customarily found in the standard loan documentation for similar financings but based upon the Parent's existing syndication loan documentation entered into in November 1999 together, in relation to the US acquisition provisions, with the provisions of the syndicated loan agreement dated August 1999 where appropriate, including, but not limited to, those set out below. Thresholds and baskets for covenants to be agreed in the light of Project Planet. 5 CONDITIONS PRECEDENT TO - Payment of all accrued fees and expenses in INITIAL ADVANCE: accordance with the provisions of the Fee Letters. - The execution and delivery of the following, in form and substance satisfactory to the Lenders: (i) board resolutions or other evidence of corporate authorisation; (ii) authorised signatory list; and (iii) legal opinions from counsel for the Borrowers and counsel for the Arrangers. - Copy of all Offer Documents and confirmation that no amendments or waivers thereto in respect of extension of offer period, change in offer price and acceptance levels. - Certificate of Parent relating to Project Planet in a form to be agreed (including confirmation of the purchase of a majority of the Common Stock of Rexall Sundown Inc.). - Constitutive documents of Obligors. - Receipt of relevant consents, regulatory and corporate approvals. - Process Agent Letters. - Confirmation of the cancellation and repayment of the existing syndicated facility. - Receipt of the proceeds of the Bridge Loan in an amount of Euro 1,050,000,000. CONDITIONS PRECEDENT TO - All repeated representations and warranties ALL DRAWINGS: are true on and as of the date of the drawing/rollover of the Advance, before and after giving effect to such and to the application for the proceeds therefrom, as though made on and as of such date. - No Event of Default or Potential Event of Default has occurred and is continuing, or would result from the drawing of new Advances. - Potential Events of Default to be defined as events which will become (with the expiry of any grace period, the giving of notice, the making of any determination under the Agreement or any combination thereof) Events of Default. 6 REPRESENTATIONS AND WARRANTIES: - Legal status. - Corporate powers. - Authorisations. - Binding obligations. - Legality and contraventions. - Borrowing limit. - No Event of Default or Potential Event of Default. - Ranking and obligations. - Stamp Duty. - Accounts. - Litigation. - No default. - Change in Business Condition. - Encumbrances. - Written Information. - Winding up. - Environmental Compliance. - Environmental Claims. - Licences and Consents. - No deduction or withholding. - Ownership of the Borrowers. - Acquisition funding. - Acquisition Terms. 7 - Use of proceeds. - Intellectual Property. - Certain representations to be repeated from time to time. - Clean-up periods. COVENANTS: - Financial covenants (determined on the basis of the Parent's consolidated statements):
(i) EBITDA to Net Interest Expense Period ending 31 December 2000 4.00:1 Period ending 31 December 2001 4.50:1 Thereafter 4.50:1 (ii) Total Senior Net Debt to EBITDA Period ending 31 December 2000 3.25:1 Period ending 31 December 2001 2.75:1 Period ending 31 December 2002 2.50:1 Thereafter 2.50:1
Such ratios shall be tested for the first time on delivery of financial statements of the Parent for the year ending 31 December 2000 and thereafter to be tested (on a rolling 12 month basis) semi-annually or (if available) quarterly. - Information to include: - annual audited financial statements; - semi annual financial statements; - quarterly financial statements to the extent prepared and published; - compliance certificate; - other information. - Ranking of Obligations. - Legality of Performance. 8 - Negative Pledge. - Disposal of Assets. - Acquisitions. - Carry on Business. - Compliance with laws. - Insurance. - Variation or waiver. - Offer. - Syndication. - Use of proceeds. - Intellectual property. - Issuer of Convertible Bonds will be the Parent and subordination thereof. - Information. - Notification of Events of Default. - Material Litigation. - Environmental Compliance. - Until the delivery of the Compliance Certificate for the annual audited financial statements for the year ending 31 December 2000, no Incurrence of Additional Financial Indebtedness in the Group in excess of the sum of (i) Euro 100,000,000; and (ii) (without double-counting) the proposed Convertible Bond in an amount of approximately Euro 700,000,000. - Non Obligors shall not incur Additional Financial Indebtedness beyond amounts to be agreed. 9 - Completion of the merger within a time period to be agreed. - To implement agreed hedging policy described in writing to the Facility Agent. EVENTS OF DEFAULT: - Non-payment. - Specific Covenants. - Other defaults. - Untrue Statements. - Cross Default. - Insolvency and Reorganisation. - Enforcement of Security. - Attachment or distress. - Inability to pay debts - Insolvency equivalence. - Unlawfulness or repudiation. - Material adverse change. - Litigation. - Approvals and authorisations. - Validity. MANDATORY PREPAYMENT: (a) In full on any merger or change of control, with appropriate notice periods; and (b) out of the net proceeds of certain permitted disposals subject to certain de minimis amounts depending on the Total Net Debt to EBITDA ratio at the time of such disposal; and 10 (c) any public debt capital markets issues with a tenor of greater than 2 years, other than the Equity Issue and the Convertible Bonds, in the case of (b) to prepay Tranche B in inverse order of maturity and then Tranche A and in the case of (c) to prepay Tranche A and then Tranche B in inverse order of maturity. OTHER: Loan documentation will include: - Indemnification of Facility Agent and Lenders and the respective affiliates, officers, directors, employees, agents and advisors. - Set off. - Illegality - Customary agency language. - Majority Lenders will be defined as those holding at least 66-2/3% of outstandings or, if none, Commitments. TRANSFERS AND PARTICIPATIONS: Each Lender will have the right to transfer or assign to one or more persons all or a portion of its rights and obligations under the Facility. Upon such transfer or assignment, the transferee or assignee shall become a Lender for all purposes of the loan documentation. Any transferee shall pay to the Facility Agent a fee of Euro 1,000. No transfers will be accepted until the Arrangers have declared the close of Syndication. YIELD PROTECTION: All payments made free and clear of any present or future taxes, withholdings or other deductions whatsoever imposed or withheld in The Netherlands or any jurisdiction in or through which payments are made (other than income taxes in the jurisdiction of the Lender's applicable lending office). The Parent will indemnify the Lenders and the Facility Agent for such taxes paid by the Lenders or the Facility Agent. Yield protection for increased capital and liquidity costs and broken funding costs will also be included. 11 GOVERNING LAW AND JURISDICTION: The Facility will be governed by the laws of England and the parties will submit to the non-exclusive jurisdiction of the English Courts. COUNSEL TO THE ARRANGERS: Clifford Chance. EXPENSES: All reasonable costs and expenses incurred (i) by the Facility Agent and/or the Arrangers in connection with the preparation, execution, delivery, modification, amendment, syndication and administration of the loan documentation (including reasonable fees and expenses of counsel to the Facility Agent) or (ii) by the Facility Agent, the Arrangers or any Lender in connection with the enforcement of the loan documentation (including reasonable fees and expenses of counsel), are for the Borrowers' account. 12 -----END PRIVACY-ENHANCED MESSAGE-----