EX-99.(B)(3) 3 ex-99_b3.txt EXHIBIT 99(B)(3) EXECUTION COPY DATED 2 JUNE 2000 KONINKLIJKE NUMICO N.V. AS PARENT DEUTSCHE BANK AG ING BANK N.V. AND SALOMON BROTHERS INTERNATIONAL LIMITED AS ARRANGERS ING BANK N.V. AS AGENT AND OTHERS --------------------------------------------------------------------------- EURO 1,050,000,000 BRIDGE FACILITY AGREEMENT --------------------------------------------------------------------------- CONTENTS
CLAUSE PAGE 1. Definitions And Interpretation..................................................................1 2. The Facility...................................................................................12 3. Utilisation Of The Facility....................................................................12 4. Interest Periods For Advances..................................................................13 5. Payment And Calculation Of Interest On Advances................................................14 6. Market Disruption And Alternative Interest Rates...............................................14 7. Notification...................................................................................15 8. Repayment Of The Facility......................................................................16 9. Cancellation And Prepayment....................................................................16 10. Taxes..........................................................................................18 11. Tax Receipts...................................................................................19 12. Increased Costs................................................................................20 13. Illegality.....................................................................................21 14. Mitigation.....................................................................................21 15. Representations................................................................................22 16. Financial Information..........................................................................26 17. Covenants......................................................................................27 18. Events Of Default..............................................................................30 19. Guarantee And Indemnity........................................................................33 20. Fees...........................................................................................35 21. Costs And Expenses.............................................................................36 22. Default Interest And Break Costs...............................................................37 23. Parent's Indemnities...........................................................................38 24. Currency Of Account And Payment................................................................40 25. Payments.......................................................................................40 26. Set-Off........................................................................................42 27. Sharing........................................................................................42 28. The Agent, The Arrangers And The Banks.........................................................44 29. Assignments And Transfers......................................................................48 30. Calculations And Evidence Of Debt..............................................................50 31. Remedies And Waivers, Partial Invalidity.......................................................52 32. Notices........................................................................................52 33. Counterparts...................................................................................54 34. Amendments.....................................................................................54 35. Governing Law..................................................................................54 36. Jurisdiction...................................................................................55 37. Borrowers' Agent...............................................................................55
Schedule 1 THE ORIGINAL PARTIES.............................................................56 Part A The Original Banks...............................................................56 Part B The Borrowers....................................................................56 Part C The Guarantors...................................................................56 Schedule 2 FORM OF TRANSFER CERTIFICATE.....................................................57 Schedule 3 CONDITIONS PRECEDENT.............................................................60 Schedule 4 NOTICE OF DRAWDOWN...............................................................62 Schedule 5 EXISTING ENCUMBRANCES............................................................63 Schedule 6 MANDATORY COSTS..................................................................64
THIS AGREEMENT is made on 2 June 2000 BETWEEN (1) KONINKLIJKE NUMICO N.V. (company no. 27090619) (the "PARENT"); (2) THE COMPANIES listed in Part B of Schedule 1 in their capacity as borrowers hereunder (together with the Parent, the "BORROWERS" and "BORROWER" means any one of them); (3) THE COMPANIES listed in Part C of Schedule 1 in their capacity as guarantors hereunder (together with the Parent, the "GUARANTORS" and "GUARANTOR" means any one of them); (4) DEUTSCHE BANK AG, ING BANK N.V. AND SALOMON BROTHERS INTERNATIONAL LIMITED as arrangers of the Facility (the "ARRANGERS"); (5) ING BANK N.V. as agent for the Banks (the "FACILITY AGENT"); and (6) THE BANKS named in Part A of Schedule 1 as original banks (the "ORIGINAL BANKS"). IT IS AGREED as follows. 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS In this Agreement: "ACQUISITION" means the proposed acquisition by the Parent of up to all of the outstanding shares of common stock of Rexall Sundown by means of the Offer and the Merger. "ADVANCE" means an advance (as from time to time consolidated, divided or reduced by repayment) made or to be made by the Banks under the Facility. "AUTHORISED SIGNATORY" means, in relation to an Obligor, any person who is duly authorised (in such manner as may be reasonably acceptable to the Facility Agent) and in respect of whom the Facility Agent has received a certificate signed by a director or another Authorised Signatory of such Obligor setting out the name and signature of such person and confirming such person's authority to act. "AVAILABILITY PERIOD" means the period from and including the date hereof to and including the earlier of (a) 10 days from the Closing Date or such later date as may be agreed for the purposes of the Offer and (b) the first Business Day on which the Available Commitment of each of the Banks is zero. "AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, its Commitment at such time LESS the aggregate of its share of the amount of the Advances which are then outstanding. "AVAILABLE FACILITY" means, at any time, the aggregate amount of the Available Commitment adjusted, in the case of any proposed drawdown, so as to take into account any reduction in the Commitment of a Bank on or before the proposed drawdown date pursuant to the terms hereof. "BANK" means any financial institution: (a) named in Part A of Schedule 1 (THE ORIGINAL BANKS); or (b) which has become a party hereto in accordance with Clause 29.3 (ASSIGNMENTS AND TRANSFERS BY BANKS), Clause 29.4 (ASSIGNMENTS BY BANKS) or Clause 29.5 (TRANSFERS BY BANKS), and which has not ceased to be a party hereto in accordance with the terms hereof. "BORROWERS' AGENT" means the Parent as agent for the Borrowers in accordance with Clause 37 (BORROWERS' AGENT). "BUSINESS DAY" means a day (other than a Saturday or Sunday) which is not a public holiday and on which banks are open for general business in London, New York and Amsterdam and any TARGET Day. "CLOSING DATE" means the date on which this Agreement is executed by all of the original parties hereto. "COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, the amount set opposite its name in Part A of Schedule 1 (THE ORIGINAL BANKS). "CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in the standard form from time to time of the LMA or in such other form as may be agreed between the Parent and the Facility Agent. "CONSOLIDATED SUBSIDIARY" means a subsidiary which is consolidated for accounting purposes with the Parent in accordance with Generally Accepted Accounting Principles. "CONVERTIBLE BONDS" means the Existing Convertible Bonds and the New Convertible Bonds. "DISPUTE" means any dispute referred to in Clause 36 (JURISDICTION). "EMU" means Economic and Monetary Union as contemplated in the Treaty on European Union. "EMU LEGISLATION" means legislative measures of the European Union for the introduction of, changeover to or operation of the euro in one or more member states, being in part legislative measures to implement EMU. "ENCUMBRANCE" means a mortgage, charge, pledge, lien or other encumbrance securing any obligation of any person or any agreement or arrangement having a similar effect. "ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by any person pursuant to any Environmental Law. "ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in which any Obligor or other member of the Group conducts business which relates to the pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants. "ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and other authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any Obligor or other member of the Group conducted on or from the properties owned or used by the relevant Obligor or other member of the Group. "EQUITY PACKAGE" means the proposed issue of new ordinary shares in the Parent and the New Convertible Bonds which will be designed to raise (before commissions and expenses) at least euro 1,050,000,000 (at least euro 400,000,000 of which in aggregate is designed to be raised by the issue of ordinary shares in the Parent). "EURIBOR" means, in relation to any amount to be advanced to, or owing by, an Obligor under the Finance Documents in euro on which interest for a given period is to accrue: (a) the percentage rate per annum equal to the offered quotation which appears on the page of the Telerate Screen which displays the rate of the Banking Federation of the European Union for the euro (being currently page 248) for such period as of 11.00 a.m. (Brussels time) on the Quotation Date for such period or, if such page or such service shall cease to be available, such other page or such other service for the purpose of displaying an average rate of the Banking Federation of the European Union as the Facility Agent, after consultation with the Banks and the Borrowers' Agent, shall select; or (b) if no quotation for the euro for the relevant period is displayed and the Facility Agent has not selected an alternative service on which a quotation is displayed, the arithmetic mean (rounded upwards to four decimal places) of the rates (as notified to the Facility Agent) at which each of the Reference Banks was offering to prime banks in the European interbank market deposits in the euro of an equivalent amount and for such period as of 11.00 a.m. (Brussels time) on the Quotation Date. "EVENT OF DEFAULT" means any circumstance described as such in Clause 18 (EVENTS OF DEFAULT). "EXISTING CONVERTIBLE BONDS" means the euro denominated convertible subordinated bonds due 2004 convertible into depositary receipts of shares and issued by the Parent in an aggregate principal amount of euro 690,000,000. "FACILITY" means the euro bridge facility granted to the Borrowers in this Agreement. "FACILITY OFFICE" means, in relation to the Facility Agent, the office identified with its signature below or such other office as it may select by notice and, in relation to any Bank, the office notified by it to the Facility Agent in writing prior to the date hereof (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) or such other office as it may from time to time select by notice to the Facility Agent. "FINANCE DOCUMENTS" means this Agreement and any fee letter delivered pursuant to Clause 20 (COMMITMENT COMMISSION AND FEES) and any other document designated as such by the Facility Agent and the Parent. "FINANCE PARTIES" means the Facility Agent, the Arrangers and the Banks. "FINANCIAL INDEBTEDNESS" of any person means: (a) all indebtedness of that person for borrowed money including debit balances at banks and including, without limitation, any subordinated convertible bonds; (b) (without double counting) all liabilities of that person (actual or contingent) under any guarantee, bond, security, indemnity or other agreement designed to assure any creditor against loss in respect of any Financial Indebtedness of any other person; (c) all indebtedness under any acceptance credit opened on behalf of that person; (d) all indebtedness of that person under any debenture, note, bond or commercial paper or similar instrument; (e) all indebtedness of that person in respect of any interest rate or currency swap or forward currency sale or purchase or contract for differences or other form of interest or currency hedging transaction or option as to any of these (including without limitation caps, collars and floors); (f) all indebtedness of that person under any finance lease; (g) any other liability (actual or contingent) undertaken by that person in connection with amounts raised under any other transaction having the commercial effect of a borrowing or raising of money, (but shall not include any indebtedness due from one Consolidated Subsidiary to another Consolidated Subsidiary, PROVIDED THAT at the time such indebtedness is incurred there is no outstanding Event of Default). "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means: (a) in relation to the Parent, accounting principles generally accepted and adopted in The Netherlands; and (b) in relation to any other Obligor, accounting principles generally accepted and adopted in The Netherlands or such Obligor's jurisdiction of incorporation. "GROUP" means the Parent and its subsidiaries for the time being. "INSTRUCTING GROUP" means: (a) before any Advances have been made, a Bank or Banks whose Commitments amount in aggregate to more than 66 2/3% of the Total Commitments; and (b) thereafter, a Bank or Banks to whom in aggregate more than 66 2/3% of the amount of the Loan is (or, immediately prior to its repayment, was then) owed. "INTELLECTUAL PROPERTY" means all patents, trade marks, rights in design and copyrights (whether registered or unregistered and including applications for registration), database rights and all rights or forms of protection of a similar nature or having equivalent effect to any of these. "INTEREST PERIOD" means, save as otherwise provided herein: (a) any of those periods mentioned in Clause 4.1 (INTEREST PERIODS); and (b) in relation to an Unpaid Sum, any of those periods mentioned in Clause 22.1 (DEFAULT INTEREST PERIODS). "LMA" means the Loan Market Association. "LOAN" means, at any time, the aggregate principal amount of outstanding Advances. "MANDATORY COST RATE" means the rate determined in accordance with Schedule 6 (MANDATORY COSTS). "MARGIN" means 0.75% per annum. "MATERIAL ADVERSE EFFECT" means a material adverse effect on the ability of an Obligor to perform, or comply with, its obligations under the Finance Documents. "MATERIAL SUBSIDIARY" means, at any time, either an Obligor (other than the Parent) or a subsidiary of the Parent which has: (a) gross assets representing 5% or more of the consolidated gross assets of the Group; or (b) net sales representing 5% or more of the consolidated net sales of the Group, in each case calculated on a consolidated basis. Compliance with the conditions set out in paragraphs (a) and (b) shall be determined by reference to the most recent audited financial statements of such subsidiary and the latest audited consolidated financial statements of the Group PROVIDED THAT: (i) if a subsidiary has been acquired since the date as at which the latest audited consolidated financial statements of the Group were prepared, such financial statements shall be adjusted in order to take into account the acquisition of such subsidiary; and (ii) if any intra-group transfer or re-organisation takes place, the audited financial statements of the Group and of all relevant subsidiaries shall be adjusted in order to take into account such intra-group transfer or reorganisation. A report by the auditors of the Parent that a subsidiary is or is not a Material Subsidiary shall, in the absence of manifest error, be conclusive and binding on all parties hereto. "MERGER" means the proposed merger, pursuant to the Merger Agreement, of Nutricia and Rexall Sundown. "MERGER AGREEMENT" means the agreement and plan of merger dated 30 April 2000, as amended on 25 May 2000, between the Parent, Nutricia and Rexall Sundown. "NEW CONVERTIBLE BONDS" means euro denominated convertible subordinated bonds due at least three months after the Revolving Termination Date (as such term is defined in the Senior Loan Agreement) convertible into depositary receipts of shares and issued by the Parent after the date of this Agreement in an aggregate principal amount of approximately euro 700,000,000. "NOTICE OF DRAWDOWN" means a notice substantially in the form set out in Schedule 4 (NOTICE OF DRAWDOWN). "NUTRICIA" means Nutricia Investment Corp., a Florida corporation which is an indirect wholly-owned subsidiary of the Parent. "OBLIGORS" means the Borrowers, the Guarantors and the Parent and "OBLIGOR" means any one of them. "OFFER" means the tender offer by Nutricia for up to all of the outstanding shares of common stock of Rexall Sundown. "OFFER DOCUMENTS" means the "Offer Documents" as defined in the Merger Agreement and all documentation filed by or on behalf of the Parent and/or Nutricia and with the Securities and Exchange Commission in connection with the Offer, (in each case where either the Parent or Nutricia is a party to such document or has been responsible for filing such document, and provided such document is material to the Finance Parties (as determined by the Facility Agent) in connection with the Finance Documents) and the Merger Agreement. "PARTICIPATING MEMBER STATE" means any member state which has adopted the euro as its lawful currency at the relevant time. "PERMITTED ENCUMBRANCE" means: (a) any lien arising by operation of law and in the ordinary course of trading; (b) any Encumbrance specified in Schedule 5 (EXISTING ENCUMBRANCES), if the principal amount thereby secured is not increased; (c) an Encumbrance created or outstanding with the prior consent of an Instructing Group; (d) any Encumbrance over or affecting any asset existing before that asset is acquired by a member of the Group. This sub-paragraph only applies if: (i) the acquisition is at fair market value and on an arms' length basis; and (ii) the amount secured does not, and the assets affected do not, increase following the acquisition. (e) any Encumbrance over or affecting any asset of any company which becomes a member of the Group after the date hereof, where such Encumbrance is created prior to the date on which such company becomes a member of the Group, if: (i) such Encumbrance was not created in contemplation of the acquisition of such company; and (ii) the amount thereby secured has not been increased in contemplation of, or since the date of, the acquisition of such company. (f) any Encumbrance arising as a result of netting and set-off arrangements regarding members of the Group in place at the date hereof and operated in the ordinary course of the Group's banking arrangements; (g) any Encumbrance created on any assets acquired by a member of the Group after the date hereof for the sole purpose of financing or refinancing that acquisition and securing a principal, capital or nominal amount not exceeding the cost of that acquisition; (h) any title transfer or retention of title arrangement entered into by any member of the Group in the normal course of its trading activities on the counterparty's standard or usual terms; (i) any Encumbrance created or subsisting in the ordinary course of business (in connection with the provision of documentary letters of credit) over documents of title, insurance policies or sale contracts in relation to commercial goods to secure the purchase price of such goods; and (j) Encumbrances not otherwise permitted by paragraphs (a) to (i) inclusive above securing indebtedness in an aggregate principal amount not exceeding euro 40,000,000 (or its equivalent). "POTENTIAL EVENT OF DEFAULT" means an event or state of affairs which is mentioned in Clause 18 (EVENTS OF DEFAULT) but which has not become an Event of Default because a period has not elapsed, a notice has not been given or a determination has not been made in each case as specified in Clause 18 (EVENTS OF DEFAULT). "PROPORTION" means, in relation to a Bank: (a) whilst no Advances are outstanding, the proportion borne by its Commitment to the Total Commitments (or, if the Total Commitments are then zero, by its Commitment to the Total Commitments immediately prior to their reduction to zero); or (b) whilst at least one Advance is outstanding, the proportion borne by its share of the amount of the Loan to the amount of the Loan. "PRESS RELEASE" means the first public announcement, dated 1 May 2000, by the Parent in connection with the Acquisition. "QUOTATION DATE" means, in relation to any period for which an interest rate is to be determined under the Finance Documents, the day on which quotations would ordinarily be given by prime banks in the European interbank market for deposits in the currency in relation to which such rate is to be determined for delivery on the first day of that period, PROVIDED that, if, for any such period, quotations would ordinarily be given on more than one date, the Quotation Date for that period shall be the last of those dates. "REFERENCE BANKS" means the principal Amsterdam offices of ING Bank N.V. and Deutsche Bank AG and the principal London office of Citibank, N.A. or such banks as may be appointed as such by the Facility Agent after consultation with the Parent. "REPAYMENT DATE" means 31 July 2000. "REPEATED REPRESENTATIONS" means each of the representations set out in Clause 15.1 (LEGAL STATUS) to Clause 15.6 (BORROWING LIMIT), Clause 15.19 (LICENCES AND CONSENTS) and Clause 15.21 (OWNERSHIP OF BORROWERS). "REXALL SUNDOWN" means Rexall Sundown, Inc., a Florida corporation. "SENIOR LOAN" means the loan in an amount of euro 1,000,000,000 and US$1,450,000,000 made available by certain financial institutions to the Borrowers pursuant to a multicurrency credit agreement dated on or about the date hereof (the "SENIOR LOAN AGREEMENT"). "SUBSEQUENT PARTICIPANT" means a member state that adopts the euro as its lawful currency after 1 January 1999. "TARGET DAY" means a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer Systems is open for settlement of payment in euros. "TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks' Commitments. "TRANSFER CERTIFICATE" means a certificate substantially in the form set out in Schedule 2 (FORM OF TRANSFER CERTIFICATE) signed by a Bank and a Transferee under which: (a) such Bank seeks to procure the transfer to such Transferee of all or a part of such Bank's rights, benefits and obligations under the Finance Documents upon and subject to the terms and conditions set out in Clause 29.3 (ASSIGNMENTS AND TRANSFERS BY Banks); and (b) such Transferee undertakes to perform the obligations it will assume as a result of delivery of such certificate to the Facility Agent as contemplated in Clause 29.5 (TRANSFERS BY BANKS). "TRANSFER DATE" means, in relation to any Transfer Certificate, the date for the making of the transfer as specified in such Transfer Certificate. "TRANSFEREE" means a person to which a Bank seeks to transfer by novation all or part of such Bank's rights, benefits and obligations under the Finance Documents. "TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as amended by the Single European Act 1986 and the Maastricht Treaty (which was signed at Maastricht on 7 February 1992 and came into force on 1 November 1993). "UNPAID SUM" means the unpaid balance of any of the sums referred to in Clause 22.1 (DEFAULT INTEREST PERIODS). 1.2 INTERPRETATION Any reference in this Agreement to: the "FACILITY AGENT" or any "BANK" shall be construed so as to include its and any subsequent successors and permitted transferees in accordance with their respective interests; "CONTINUING", in relation to an Event of Default, shall be construed as a reference to an Event of Default which has not been waived in accordance with the terms hereof and, in relation to a Potential Event of Default, one which has not been remedied within the relevant grace period or waived in accordance with the terms hereof; the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of an amount denominated in another currency (the "SECOND CURRENCY") is a reference to the amount of the first currency which could be purchased with the amount of the second currency at the spot rate of exchange quoted by the Facility Agent at or about 11.00 a.m. on such date for the purchase of the first currency with the second currency; a "HOLDING COMPANY" of a company or corporation shall be construed as a reference to any company or corporation of which the first-mentioned company or corporation is a subsidiary; "INDEBTEDNESS" shall be construed so as to include any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; a "LAW" shall be construed as any law (including common or customary law), statute, constitution, decree, judgment, treaty, regulation, directive, bye-law, order or any other legislative measure of any government, supranational, local government, statutory or regulatory body or court; a "MEMBER STATE" shall be construed as a reference to a member state of the European Union; a "MONTH" is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next succeeding calendar month save that: (a) if any such numerically corresponding day is not a Business Day, such period shall end on the immediately succeeding Business Day to occur in that next succeeding calendar month or, if none, it shall end on the immediately preceding Business Day; and (b) if there is no numerically corresponding day in that next succeeding calendar month, that period shall end on the last Business Day in that next succeeding calendar month, (and references to "MONTHS" shall be construed accordingly); a "PERSON" shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing; "REPAY" (or any derivative form thereof) shall, subject to any contrary indication, be construed to include "PREPAY" (or, as the case may be, the corresponding derivative form thereof); a "SUBSIDIARY" means, in respect of a company or corporation, any company or corporation in which the first company or corporation: (a) holds, directly or indirectly a majority of the voting rights; (b) is a member and has the right to appoint or remove a majority of its board of directors; (c) is a member and controls, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or which is a subsidiary of another company or corporation which is itself a subsidiary of the first company or corporation. a "SUCCESSOR" shall be construed so as to include an assignee or successor in title of such party and any person who under the laws of its jurisdiction of incorporation or domicile has assumed the rights and obligations of such party under this Agreement or to which, under such laws, such rights and obligations have been transferred; "TAX" shall be construed so as to include any tax, levy, impost, duty or other charge of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); "VAT" shall be construed as a reference to value added tax including any similar tax which may be imposed in place thereof from time to time; a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be construed as a reference to any company or corporation which has no other members except that other company or corporation and that other company's or corporation's wholly-owned subsidiaries or persons acting on behalf of that other company or corporation or its wholly-owned subsidiaries; and the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company or corporation is incorporated or any jurisdiction in which such company or corporation carries on business including the seeking of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors. 1.3 CURRENCY SYMBOLS AND DEFINITIONS "EURO" and "EUR" means the single currency unit of the European Union as constituted by the Treaty on European Union as referred to in EMU Legislation and "EURO UNIT" means the currency unit of the euro as defined in EMU Legislation. 1.4 AGREEMENTS AND STATUTES Any reference in this Agreement to: 1.4.1 this Agreement or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document as the same may have been, or may from time to time be, amended, varied, novated or supplemented; and 1.4.2 a statute or treaty shall be construed as a reference to such statute or treaty as the same may have been, or may from time to time be, amended or, in the case of a statute, re-enacted. 1.5 HEADINGS Clause and Schedule headings are for ease of reference only. 1.6 TIME Any reference in this Agreement to a time of day shall, unless a contrary indication appears, be a reference to London time. 2. THE FACILITY 2.1 GRANT OF THE FACILITY The Banks grant to the Borrowers, upon the terms and subject to the conditions hereof a euro bridge facility in an aggregate amount of euro 1,050,000,000. 2.2 PURPOSE AND APPLICATION The Facility is intended to serve as a bridge loan for the Acquisition until the completion of the Equity Package and, accordingly, each Borrower shall apply all amounts raised by it hereunder in or towards satisfaction of these purposes and none of the Finance Parties shall be obliged to concern themselves with such application. 2.3 CONDITIONS PRECEDENT Save as the Banks may otherwise agree, none of the Borrowers may deliver any Notice of Drawdown unless the Facility Agent has confirmed to the Parent and the Original Banks that it has received all of the documents and other evidence listed in Schedule 3 (CONDITIONS PRECEDENT) and that each is, in form and substance, satisfactory to the Facility Agent. 2.4 BANKS' OBLIGATIONS SEVERAL The obligations of each Bank are several and the failure by a Bank to perform its obligations hereunder shall not affect the obligations of an Obligor towards any other party hereto nor shall any other party be liable for the failure by such Bank to perform its obligations hereunder. 2.5 BANKS' RIGHTS SEVERAL The rights of each Bank are several and any debt arising hereunder at any time from an Obligor to any of the other parties hereto shall be a separate and independent debt. Each such party shall be entitled to protect and enforce its individual rights arising out of this Agreement independently of any other party (so that it shall not be necessary for any party hereto to be joined as an additional party in any proceedings for this purpose). 3. UTILISATION OF THE FACILITY 3.1 DRAWDOWN CONDITIONS FOR ADVANCES An Advance will be made by the Banks to a Borrower if: 3.1.1 not later than 10.00 a.m. (Amsterdam time) on the fourth Business Day (or second Business Day with regard to the initial Advance) before the proposed date for the making of such Advance, the Facility Agent has received a completed Notice of Drawdown from such Borrower; 3.1.2 the proposed date for the making of such Advance is a Business Day within the Availability Period; 3.1.3 the proposed amount of such Advance is (a) (if less than the Available Facility) an amount not less than euro 100,000,000 and an integral multiple of euro 50,000,000 or (b) equal to the amount of the Available Facility; 3.1.4 there would not, immediately after the making of such Advance, be more than 2 Advances outstanding; and 3.1.5 on and as of the proposed date for the making of such Advance (a) no Event of Default or Potential Event of Default is continuing and (b) the Repeated Representations are true in all material respects. 3.2 EACH BANK'S PARTICIPATION IN ADVANCES Each Bank will participate through its Facility Office in each Advance made pursuant to Clause 3.1 (DRAWDOWN CONDITIONS FOR ADVANCES) in the proportion borne by its Available Commitment to the Available Facility immediately prior to the making of that Advance. 3.3 REDUCTION OF AVAILABLE COMMITMENT If a Bank's Available Commitment is reduced in accordance with the terms hereof after the Facility Agent has received the Notice of Drawdown for an Advance and such reduction was not taken into account in the Available Facility, then the amount of that Advance shall be reduced accordingly. 4. INTEREST PERIODS FOR ADVANCES 4.1 INTEREST PERIODS The period for which an Advance is outstanding shall be divided into successive periods each of which (other than the first, which shall begin on the day such Advance is made) shall start on the last day of the preceding such period. 4.2 DURATION The duration of each Interest Period shall, save as otherwise provided herein, be one or two weeks or such other period not being less than 3 days (or such other periods with the prior consent of the Facility Agent), in each case as the Borrower to which such Advance is made may by not less than four Business Days' prior notice to the Facility Agent select (or such other period as the Banks may agree), PROVIDED THAT: 4.2.1 if such Borrower fails to give such notice of its selection in relation to an Interest Period, the duration of that Interest Period shall, subject to sub-clause 4.2.2, be one week; and 4.2.2 no Interest Period shall extend beyond the Repayment Date. 4.3 CONSOLIDATION OF ADVANCES If two or more Interest Periods relating to Advances made to the same Borrower and denominated in the same currency end at the same time, then unless that Borrower (or the Borrowers' Agent on its behalf) specifies to the contrary, on the last day of those Interest Periods, the Advances to which they relate shall be consolidated into and treated as a single Advance. 4.4 DIVISION OF ADVANCES The Borrower to which such Advance is made may, by not less than four Business Days' prior notice to the Facility Agent, direct that any Advance shall, at the beginning of any Interest Period relating thereto, be divided into (and thereafter, save as otherwise provided herein, treated in all respects as) two Advances having such amount as shall be specified by such Borrower in such notice, PROVIDED THAT such Borrower shall not be entitled to make such a direction if: 4.4.1 as a result of so doing, there would be more than two outstanding Advances; or 4.4.2 any Advance thereby coming into existence would have an amount of less than euro 100,000,000. 5. PAYMENT AND CALCULATION OF INTEREST ON ADVANCES 5.1 PAYMENT OF INTEREST On the last day of each Interest Period the Borrower to which such Advance has been made shall pay accrued interest on the Advance to which such Interest Period relates. 5.2 CALCULATION OF INTEREST The rate of interest applicable to an Advance from time to time during an Interest Period relating thereto shall be the rate per annum which is the sum of: 5.2.1 the Margin at the relevant time; 5.2.2 the Mandatory Cost Rate; and 5.2.3 EURIBOR. 5.3 Interest is to be computed on a 360 day basis and the number of actual days elapsed. 6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES 6.1 MARKET DISRUPTION If, in relation to any Advance: 6.1.1 EURIBOR is to be determined by reference to Reference Banks and at or about the time at which the rate is to be determined on the Quotation Date for the relevant Interest Period none or only one of the Reference Banks supplies a rate for the purpose of determining EURIBOR for the relevant Interest Period; or 6.1.2 before the close of business in London on the Quotation Date for such Advance the Facility Agent has been notified by a Bank or each of a group of Banks to whom in aggregate 50% or more of such Advance is owed (or, in the case of an undrawn Advance, if made, would be owed) that EURIBOR does not accurately reflect the cost of funding its participation in such Advance, then, the Facility Agent shall notify the Parent, the relevant Borrower and the Banks of such event and, notwithstanding anything to the contrary in this Agreement, Clause 6.2 (SUBSTITUTE INTEREST PERIOD AND INTEREST RATE) shall apply to such Advance. If sub-clause 6.1.1 or 6.1.2 applies to a proposed Advance, the relevant Borrower may elect to have the Advance made on the basis of Clause 6.2 (SUBSTITUTE INTEREST PERIOD AND INTEREST RATE) or, if the relevant Borrower does not so elect by notice to the Facility Agent within 1 hour of receipt of the notice from the Facility Agent pursuant to this Clause 6.1 such Advance shall not be made. 6.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE If sub-clause 6.1.1 of Clause 6.1 (MARKET DISRUPTION) applies to an Advance, the duration of the relevant Interest Period shall be one week or, if less, such that it shall end on the Repayment Date. If either sub-clause 6.1.1 or 6.1.2 of Clause 6.1 (MARKET DISRUPTION) applies to an Advance the rate of interest applicable to such Advance during the relevant Interest Period shall (subject to any agreement reached pursuant to Clause 6.3 (ALTERNATIVE RATE)) be the rate per annum which is the sum of: 6.2.1 the Margin at such time; 6.2.2 the Mandatory Cost Rate in respect thereof at such time; and 6.2.3 the rate per annum determined by the Facility Agent to be the arithmetic mean (rounded upwards to four decimal places) of the rates notified by each Bank to the Facility Agent before the last day of such Interest Period to be those which express as a percentage rate per annum the cost to each Bank of funding from whatever sources it may reasonably select its portion of such Advance during such Interest Period. 6.3 ALTERNATIVE RATE If either of those events mentioned in sub-clauses 6.1.1 and 6.1.2 of Clause 6.1 (MARKET DISRUPTION) occurs in relation to an Advance, then if the Facility Agent or the Parent so requires, the Facility Agent and the Parent shall enter into negotiations with a view to agreeing a substitute basis (i) for determining the rates of interest from time to time applicable to the Advances and/or (ii) upon which the Advances may be maintained thereafter and any such substitute basis that is agreed shall take effect in accordance with its terms and be binding on each party hereto, PROVIDED THAT the Facility Agent may not agree any such substitute basis without the prior consent of each Bank. 7. NOTIFICATION 7.1 ADVANCES Not less than three Business Days before the first day of an Interest Period, the Facility Agent shall notify each Bank of the name of the Borrower, the proposed amount of the relevant Advance, the proposed length of the relevant Interest Period and the aggregate principal amount of the relevant Advance allocated to such Bank pursuant to Clause 3.2 (EACH BANK'S PARTICIPATION IN ADVANCES). 7.2 INTEREST RATE DETERMINATION The Facility Agent shall promptly notify the relevant Borrower and the Banks of each determination of EURIBOR and the Mandatory Cost Rate. 7.3 CHANGES TO ADVANCES OR INTEREST RATES The Facility Agent shall promptly notify the relevant Borrower and the Banks of any change to (a) the proposed length of an Interest Period or (b) any interest rate occasioned by the operation of Clause 6 (MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES). 8. REPAYMENT OF THE FACILITY 8.1 REPAYMENT OF THE FACILITY Each Borrower shall repay its share of the Loan in full on the Repayment Date. 9. CANCELLATION AND PREPAYMENT 9.1 CANCELLATION OF THE FACILITY The Parent may, by giving to the Facility Agent not less than five Business Days' prior notice to that effect, cancel the whole or any part (being an amount not less than euro 100,000,000 and an integral multiple of euro 50,000,000) of the Available Facility. Any such cancellation shall reduce the Available Commitments and Commitments of the Banks rateably. On the last day of the Availability Period each Bank's Available Commitment shall be automatically cancelled. 9.2 PREPAYMENT OF THE LOAN The Borrower to which an Advance has been made may, if it has given to the Facility Agent not less than five Business Days' prior notice to that effect, but subject to Clause 22.4 (BREAK COSTS), prepay the whole of any Advance or any part of any Advance selected by the Borrower (being an amount such that the amount of such Advance will be reduced by an amount not less than euro 100,000,000 and an integral multiple of euro 50,000,000) on the last day of any Interest Period relating to that Advance which ends after the last day of the Availability Period. 9.3 NOTICE OF CANCELLATION OR PREPAYMENT Any notice of cancellation or prepayment given by a Borrower pursuant to this Clause 9 shall be irrevocable, shall specify the date upon which such cancellation or prepayment is to be made and the amount of such cancellation or prepayment and, in the case of a notice of prepayment, shall oblige the relevant Borrower to make such prepayment on such date. 9.4 REPAYMENT OF A BANK'S SHARE OF THE LOAN If: 9.4.1 any sum payable to any Bank by an Obligor is required to be increased pursuant to Clause 10.1 (TAX GROSS-UP); or 9.4.2 any Bank claims indemnification from the Parent under Clause 10.2 (TAX INDEMNITY) or Clause 12.1 (INCREASED COSTS), the Parent may, whilst such circumstance continues, give the Facility Agent at least ten Business Days' notice (which notice shall be irrevocable) of its intention to procure the repayment of such Bank's share of the Loan and at any time after the expiry of such notice but no later than the last day of each Interest Period current at such expiry, each Borrower to which an Advance has been made shall repay such Bank's portion of the Advance to which such Interest Period relates together with accrued interest and any other amounts outstanding under this Agreement. 9.5 NO FURTHER ADVANCES A Bank for whose account a repayment is to be made under Clause 9.4 (REPAYMENT OF A BANK'S SHARE OF THE LOAN) shall not be obliged to participate in the making of Advances on or after the date upon which the Facility Agent receives the Parent's notice of its intention to procure the repayment of such Bank's share of the Loan, and such Bank's Available Commitment shall be reduced to zero. 9.6 NO OTHER REPAYMENTS The Borrowers shall not repay all or any part of the Loan except at the times and in the manner expressly provided for in this Agreement. 9.7 NO REBORROWING OF THE FACILITY None of the Borrowers shall be entitled to reborrow any amount of the Facility which is repaid. 9.8 MANDATORY PREPAYMENT ON MERGER OR CHANGE OF CONTROL Other than in the case of the Merger, if the Parent merges with any other person, or one or more persons, acting either individually or in concert, obtain control of it: 9.8.1 the Parent shall promptly notify the Facility Agent upon becoming aware of that event; and 9.8.2 upon receipt of such notice referred to in sub-clause 9.8.1, the Facility Agent shall consult with the Parent and the Banks; and 9.8.3 if, at the end of a period of 5 days following the commencement of such consultation, an Instructing Group so requires, the Facility Agent shall, by not less than 14 days notice to the Parent, cancel the Facility and declare the outstanding Loan, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and all such outstanding amounts will become immediately due and payable; and 9.8.4 for the purposes of this Clause 9.8 "control" means, directly or indirectly: (a) having a majority of the voting rights; or (b) having the right to appoint or remove a majority of its board of directors; or (c) controlling, pursuant to an agreement with other shareholders or members or otherwise, a majority of the voting rights in it. 9.9 MANDATORY PREPAYMENT FROM PROCEEDS OF EQUITY PACKAGE 9.9.1 From the date of this Agreement and while any Advance is outstanding the Parent shall apply (or shall procure that there are applied) not later than 3 Business Days following the date of completion of the Equity Package, the Net Proceeds of the Equity Package in prepayment of each Advance. 9.9.2 Any prepayment under sub-clause 9.9.1 will be made at any time subject to the provisions of Clause 22.4 (BREAK COSTS). 9.9.3 For the purpose of this Clause: "NET PROCEEDS" means the cash proceeds of the Equity Package received by any member of the Group after the date of this Agreement less directly related expenses, commissions, fees and taxes in respect of the Equity Package. 10. TAXES 10.1 TAX GROSS-UP All payments to be made by an Obligor to any Finance Party under the Finance Documents shall be made free and clear of and without deduction for or on account of tax unless such Obligor is required to make such a payment subject to the deduction or withholding of tax, in which case the sum payable by such Obligor (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that such Finance Party receives a sum net of any deduction or withholding equal to the sum which it would have received had no such deduction or withholding been made or required to be made. 10.2 TAX INDEMNITY Without prejudice to Clause 10.1 (TAX GROSS-UP), if any Finance Party is required to make any payment of or on account of tax on or in relation to any sum received or receivable under the Finance Documents (including any sum deemed for purposes of tax to be received or receivable by such Finance Party whether or not actually received or receivable) or if any liability in respect of any such payment is asserted, imposed, levied or assessed against any Finance Party, the Parent shall, upon demand of the Facility Agent, promptly indemnify the Finance Party which suffers a loss or liability as a result against such payment or liability, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, PROVIDED THAT this Clause 10.2 shall not apply to: 10.2.1 any tax imposed on and calculated by reference to the net income actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for purposes of tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which such Finance Party is incorporated or, if different, the jurisdiction in which that Finance Party is treated as resident for tax purposes; or 10.2.2 any tax imposed on and calculated by reference to the net income of the Facility Office of such Finance Party actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for purposes of tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which its Facility Office is located. 10.3 CLAIMS BY BANKS A Bank intending to make a claim pursuant to Clause 10.2 (TAX INDEMNITY) shall promptly notify the Facility Agent of the event giving rise to the claim, whereupon the Facility Agent shall notify the Parent thereof. 11. TAX RECEIPTS 11.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX If, at any time, an Obligor is required by law to make any deduction or withholding from any sum payable by it under the Finance Documents (or if thereafter there is any change in the rates at which or the manner in which such deductions or withholdings are calculated), such Obligor shall promptly notify the Facility Agent. 11.2 EVIDENCE OF PAYMENT OF TAX If an Obligor makes any payment under the Finance Documents in respect of which it is required to make any deduction or withholding, it shall pay the full amount required to be deducted or withheld to the relevant taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the Facility Agent for each Bank, within thirty days after it has made such payment to the applicable authority, an original receipt (or a certified copy thereof) issued by such authority evidencing the payment to such authority of all amounts so required to be deducted or withheld in respect of that Bank's share of such payment. 11.3 TAX CREDIT PAYMENT If an additional payment is made under Clause 10 (TAXES) by an Obligor for the benefit of any Finance Party and such Finance Party, in its sole discretion, determines that it has obtained (and has derived full use and benefit from) a credit against, a relief or remission for, or repayment of, any tax, then, if and to the extent that such Finance Party, in its sole opinion, determines that: 11.3.1 such credit, relief, remission or repayment is in respect of or calculated with reference to the additional payment made pursuant to Clause 10 (TAXES); and 11.3.2 its tax affairs for its tax year in respect of which such credit, relief, remission or repayment was obtained have been finally settled, such Finance Party shall, to the extent that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment, pay to such Obligor such amount as such Finance Party shall, in its sole opinion, determine to be the amount which will leave such Finance Party (after such payment) in no worse after-tax position than it would have been in had the additional payment in question not been required to be made by such Obligor. 11.4 TAX AND OTHER AFFAIRS No provision of this Agreement shall interfere with the right of any Finance Party to arrange its tax or any other affairs in whatever manner it thinks fit, oblige any Finance Party to claim any credit, relief, remission or repayment in respect of any payment under Clause 10 (TAXES) in priority to any other credit, relief, remission or repayment available to it nor oblige any Finance Party to disclose any information relating to its tax or other affairs or any computations in respect thereof. 12. INCREASED COSTS 12.1 INCREASED COSTS If, by reason of (a) any change in law or in its interpretation or administration and/or (b) compliance with any request or requirement relating to the maintenance of capital or any other request from or requirement of any central bank or other fiscal, monetary or other authority after the date hereof: 12.1.1 a Bank or any holding company of such Bank is unable to obtain the rate of return on its capital which it would have been able to obtain but for such Bank's entering into or assuming or maintaining a commitment or performing its obligations under the Finance Documents; 12.1.2 a Bank or any holding company of such Bank incurs a cost as a result of such Bank's entering into or assuming or maintaining a commitment or performing its obligations under the Finance Documents; or 12.1.3 there is any increase in the cost to a Bank or any holding company of such Bank of funding or maintaining such Bank's share of the Advances or any Unpaid Sum, then the Parent shall, from time to time on demand of the Facility Agent, promptly pay to the Facility Agent for the account of that Bank amounts sufficient to indemnify that Bank or to enable that Bank to indemnify its holding company from and against, as the case may be, (i) such reduction in the rate of return of capital, (ii) such cost or (iii) such increased cost. 12.2 INCREASED COSTS CLAIMS 12.2.1 A Bank intending to make a claim pursuant to Clause 12.1 (INCREASED COSTS) shall notify the Facility Agent of the event giving rise to such claim, whereupon the Facility Agent shall notify the Parent thereof. 12.2.2 Each Bank shall, as soon as practicable after demand by the Facility Agent, provide a certificate confirming the amount of its claim pursuant to Clause 12.1 (INCREASED COSTS). 12.3 EXCLUSIONS Notwithstanding the foregoing provisions of this Clause 12, no Bank shall be entitled to make any claim under this Clause 12 in respect of: 12.3.1 any cost, increased cost or liability as referred to in Clause 12.1 (INCREASED COSTS) to the extent the same is compensated by the Mandatory Cost Rate; or 12.3.2 any cost, increased cost or liability compensated by Clause 10 (TAXES); or 12.3.3 any cost, increased cost or liability attributable to the wilful breach by the relevant Bank of any law or regulation. 13. ILLEGALITY If, at any time, it is or will become unlawful for a Bank to make, fund or allow to remain outstanding all or part of its share of the Advances, then that Bank shall, promptly after becoming aware of the same, deliver to the Parent through the Facility Agent a notice to that effect and: 13.1.1 such Bank shall not thereafter be obliged to participate in the making of any Advances and the amount of its Available Commitment shall be immediately reduced to zero; and 13.1.2 if the Facility Agent on behalf of such Bank so requires, the Parent shall procure that each Borrower which has drawn an Advance shall on such date as the Facility Agent shall have specified repay such Bank's share of any outstanding Advances together with accrued interest thereon and all other amounts owing to such Bank under the Finance Documents. 14. MITIGATION If, in respect of any Bank, circumstances arise which would or would upon the giving of notice result in: 14.1.1 an increase in any sum payable to it or for its account pursuant to Clause 10.1 (TAX GROSS-UP); 14.1.2 a claim for indemnification pursuant to Clause 10.2 (TAX INDEMNITY) or Clause 12.1 (INCREASED COSTS); or 14.1.3 the reduction of its Available Commitment to zero or any repayment to be made pursuant to Clause 13 (ILLEGALITY), then, without in any way limiting, reducing or otherwise qualifying the rights of such Bank or the obligations of the Obligors under any of the Clauses referred to in sub-clauses 14.1.1, 14.1.2 and 14.1.3, such Bank shall promptly upon becoming aware of such circumstances notify the Facility Agent thereof and, in consultation with the Facility Agent and the Parent and to the extent that it can do so lawfully and without prejudice to its own position, take reasonable steps (including a change of location of its Facility Office or the transfer of its rights, benefits and obligations under the Finance Documents to another financial institution acceptable to the Parent and willing to participate in the Facility) to mitigate the effects of such circumstances, PROVIDED THAT such Bank shall be under no obligation to take any such action if, in the opinion of such Bank, to do so might have any adverse effect upon its business, operations or financial condition (other than any minor costs and expenses of an administrative nature). 15. REPRESENTATIONS Each Obligor makes on its own behalf the representations and warranties set out in Clause 15.1 (LEGAL STATUS) to Clause 15.23 (ACQUISITION TERMS) in relation to it and, in addition, the Parent makes the representations set out therein in relation to the Group. The Obligors acknowledge that the Finance Parties have entered into this Agreement in reliance on those representations and warranties. 15.1 LEGAL STATUS It is a company duly incorporated and validly existing under the laws of the place of its incorporation. 15.2 CORPORATE POWERS It has power to own its assets and conduct its business as it is now being conducted. It, and in the case of the Offer Documents, Nutricia, also has power to sign and deliver those of the Finance Documents and Offer Documents to which it is party and to exercise its rights and perform its obligations under those Finance Documents and Offer Documents to which it is a party. 15.3 AUTHORISATIONS The signature and delivery of those of the Finance Documents and Offer Documents to which it is a party (or, in the case of the Offer Documents, to which Nutricia is a party) and the exercise by it (or in the case of the Offer Documents, by Nutricia) of its rights and the performance of its obligations under those Finance Documents and Offer Documents have been duly authorised. 15.4 BINDING OBLIGATIONS Those of the Finance Documents and Offer Documents to which it is party (or, in the case of the Offer Documents, to which Nutricia is a party) have been duly signed and delivered by it. Its (and, in the case of the Offer Documents, Nutricia's) obligations described in those Finance Documents and Offer Documents to which it is party are its legal, valid, binding and, subject to the qualifications as to matters of law set out in those legal opinions referred to in Schedule 3 (CONDITIONS PRECEDENT), enforceable obligations. 15.5 LEGALITY AND CONTRAVENTIONS The signature and delivery of those of the Finance Documents and Offer Documents to which it is party (or, in the case of the Offer Documents, to which Nutricia is a party) and its (and, in the case of the Offer Documents, Nutricia's) exercise of rights and performance of obligations under those Finance Documents and Offer Documents: 15.5.1 are not prohibited by law, regulation or order or by its constitutional documents; 15.5.2 do not require any approval, filing, registration or exemption or if any approval, filing, registration or exemption is required and except where failure to obtain such approval, filing, registration or exemption would not have a Material Adverse Effect, it has been made or obtained in a timely manner and remains in full force and effect, or in the case of the application for advice, positive advice has been obtained; and 15.5.3 are not prohibited by, and do not constitute an event of default under, any material document or arrangement to which it is a party (except the euro 1,400,000,000 Multicurrency Credit Facility dated 23 November 1999, which will be repaid with proceeds of the Senior Loan) and do not result in an obligation to create an Encumbrance under any document or arrangement to which it is a party which would constitute a breach of Clause 17.3 (NEGATIVE PLEDGE). 15.6 BORROWING LIMIT The borrowing of the full amount available under the Finance Documents will not cause any limitation on the powers to borrow of any Borrower or on the powers to give a guarantee of any Guarantor or their respective directors to be exceeded. 15.7 NO EVENT OF DEFAULT OR POTENTIAL EVENT OF DEFAULT No Event of Default or Potential Event of Default has occurred and remains unremedied or unwaived and none will occur as a result of the exercise of its rights or the performance of its obligations under the Finance Documents. 15.8 RANKING AND OBLIGATIONS Its obligations under the Finance Documents will rank at least PARI PASSU in right and priority of payment with all its other present and future unsecured and unsubordinated indebtedness (actual or contingent), except for obligations mandatorily preferred by law applying to companies generally. 15.9 STAMP DUTY No stamp, registration or similar tax is payable, and no filing or registration is required, in connection with the execution, performance or enforcement of any Finance Document. 15.10 ACCOUNTS Its most recent financial statements (consolidated and audited in the case of the Parent) give a true and fair view of the financial condition of such Obligor or, as the case may be, the Group during the relevant financial year and were prepared in accordance with the relevant Generally Accepted Accounting Principles consistently applied except to the extent that the accompanying notes provide a description of a different treatment. 15.11 LITIGATION No member of the Group is involved in any court or arbitration proceedings nor is it aware that any proceedings of this kind are being considered or threatened by any other person (other than as previously disclosed to the Arrangers and Banks) which would or is reasonably likely to have a Material Adverse Effect. 15.12 NO DEFAULT No member of the Group is in breach of any law (including environmental law), order, regulation, agreement or arrangement applicable to it or any of its assets which in any such case would or is reasonably likely to have a Material Adverse Effect. 15.13 CHANGE IN BUSINESS CONDITION There has been no change in the business condition (financial or otherwise), operations, performance or prospects of the Parent or the Group taken as a whole (excluding, for these purposes, the effect as at the date hereof of the Acquisition of Rexall Sundown) since 31 December 1999 which would have a Material Adverse Effect. 15.14 ENCUMBRANCES Save for Permitted Encumbrances, no Encumbrance exists over any of the present or future assets of any member of the Group. 15.15 WRITTEN INFORMATION All written information supplied by any member of the Group is true, complete and accurate in all material respects as at the date it was given and is not misleading in any material respect and all financial projections that have been prepared by the Arrangers and approved by the Parent are based upon assumptions considered by it to be reasonable. 15.16 WINDING UP No proceedings are current, pending or, so far as it is aware, threatened for the winding up of any Obligor or any Material Subsidiary. 15.17 ENVIRONMENTAL COMPLIANCE Each member of the Group has duly performed and observed in all material respects all Environmental Laws, Environmental Permits and all other material covenants, conditions, restrictions or agreements directly or indirectly concerned with any contamination, pollution or waste or the release or discharge of any toxic or hazardous substance in connection with any real property which is or was at any time owned, leased or occupied by any member of the Group or on which any member of the Group has conducted any activity where failure to do so might reasonably be expected to have a Material Adverse Effect. 15.18 ENVIRONMENTAL CLAIMS No Environmental Claim has been commenced or is threatened against any member of the Group where such claim would be reasonably likely, if determined against such member of the Group, to have a Material Adverse Effect. 15.19 LICENCES AND CONSENTS All necessary consents, licences, authorisations and approvals to the transactions constituted by the Finance Documents and Offer Documents have been obtained and are in full force and effect in accordance with the terms of the Finance Documents or, as the case may be, the Offer Documents or will be obtained in a timely manner. All consents, licences, authorisations and other approvals necessary for the conduct of the business of the Group and the absence of which would have a Material Adverse Effect have been obtained and are in full force and effect in accordance with the terms of the Finance Documents or, as the case may be, the Offer Documents or will be obtained in a timely manner. 15.20 NO DEDUCTION OR WITHHOLDING Under the laws of its jurisdiction of incorporation in force at the date hereof, it will not be required to make any deduction or withholding from any payment it may make under the Finance Documents. 15.21 OWNERSHIP OF THE BORROWERS Each of the Borrowers (other than the Parent) is a wholly-owned subsidiary of the Parent. 15.22 ACQUISITION FUNDING The amount available but undrawn under the Senior Loan (disregarding any part of the original total commitments which has been cancelled) will at all times equal or exceed the amount required by Nutricia to fund the acquisition cost of the common stock of Rexall Sundown to the extent that such stock has not yet been tendered to Nutricia or acquired pursuant to the Merger. 15.23 ACQUISITION TERMS The Parent has not, and the Parent has procured that Nutricia has not, without the prior approval of the Arrangers: (i) varied or waived the original offer price for the tender of shares of Rexall Sundown; (ii) varied or waived, the acceptance levels for the tender of shares of Rexall Sundown; (iii) extended the offer period for the tender of shares of Rexall Sundown beyond any period contemplated in the Offer Documents; or (iv) except as contemplated by this Agreement, altered in any material respect the way in which the consideration due to the Rexall Sundown stockholders is funded from that set out in the Offer Documents. 15.24 CLEAN-UP PERIOD The Repeated Representations shall not apply to Rexall Sundown or any of its Subsidiaries until the date falling 60 days after completion of the Merger. The Parent agrees that any circumstance of which it is or becomes aware at any time which, but for this Clause 15.24, would result in a breach of representation, has been notified to the Arrangers prior to the date of this Agreement or, as the case may be, will be promptly notified to them as soon as the Parent becomes aware of it. 15.25 REPETITION OF REPRESENTATIONS The Repeated Representations shall be deemed to be repeated by the relevant Obligor by reference to the facts and circumstances then existing on the first day of each Interest Period and on each date on which an Advance is or is to be made. 15.26 INTELLECTUAL PROPERTY It is not aware of any adverse circumstance relating to validity, subsistence or use of any of its Intellectual Property which could reasonably be expected to have a Material Adverse Effect. 16. FINANCIAL INFORMATION 16.1 FINANCIAL INFORMATION Each Obligor shall from time to time on the request of the Facility Agent, furnish the Facility Agent with such information about the business and financial condition of any Obligor, any other Material Subsidiary or the Group as the Facility Agent may reasonably require. 16.2 SHAREHOLDER AND CREDITOR INFORMATION The Parent shall, as soon as reasonably practicable, after the same are supplied or made available, furnish the Facility Agent with such general information as is supplied to its shareholders generally or, in the case of any Obligor, its creditors generally or any class thereof. 16.3 ADDITIONAL FINANCIAL INDEBTEDNESS No Obligor shall and the Parent shall procure that no other member of the Group will incur, or agree to incur, at any time any Financial Indebtedness in excess (when taken together with the aggregate Financial Indebtedness of all other members of the Group other than in respect of, or incurred to refinance any part of, this Facility) of an amount equal to the aggregate of (a) euro 100,000,000 (or its equivalent in any other currency); (b) an amount equal to the aggregate Financial Indebtedness of the Parent and each of its subsidiaries on the date hereof; (c) indebtedness described in paragraph (e) of the definition of Financial Indebtedness; and (d) the principal amount of the New Convertible Bonds issued by the Parent . 16.4 LIMITATION ON NON-OBLIGOR FINANCIAL INDEBTEDNESS At all times, the aggregate amount of Financial Indebtedness (excluding obligations owed by one member of the Group to another member of the Group) incurred by members of the Group which are not Obligors shall not exceed euro 200,000,000. 17. COVENANTS Each Obligor makes on its own behalf the covenants set out in Clause 17.1 (RANKING OF OBLIGATIONS) to Clause 17.16 (INTELLECTUAL PROPERTY) in relation to it and, in addition, the Parent makes the covenants set out therein in relation to the Group. 17.1 RANKING OF OBLIGATIONS It will ensure that the obligations of each Obligor under each Finance Document rank and will at all times rank at least PARI PASSU in right and priority of payment with all that Obligor's other present and future unsecured and unsubordinated indebtedness (actual or contingent) except for obligations mandatorily preferred by law applying to companies generally. 17.2 LEGALITY OF PERFORMANCE It (or, in the case of the Offer Documents, Nutricia) will exercise its rights and perform its obligations under the Finance Documents and the Offer Documents without contravention of applicable laws. If approvals are required, it (or, in the case of the Offer Documents, Nutricia) will obtain and maintain them and will comply with their terms. 17.3 NEGATIVE PLEDGE It will not create or allow to exist (and will procure that no member of the Group creates or allows to exist) any Encumbrance over all or any of its assets, present or future revenues or assets other than a Permitted Encumbrance. 17.4 DISPOSAL OF ASSETS It will not sell, lease, transfer or otherwise dispose of any of its assets. It will also procure that no other member of the Group will dispose of that Group member's assets. This does not apply to: 17.4.1 disposals in the ordinary course of trading; or 17.4.2 disposals to which an Instructing Group has agreed, in writing; or 17.4.3 disposals of assets in exchange for other assets comparable or superior as to type, value and quality; or 17.4.4 disposals from one Obligor to another Obligor; or 17.4.5 disposals from a Group member (which is not an Obligor) to an Obligor or to another Group member which is also not an Obligor; or 17.4.6 transfers of cash pursuant to the Group's cash pooling arrangements in place at the date of this Agreement and operated in the ordinary course of the Group's banking arrangements unless at the time of such transfer there is any Event of Default or Potential Event of Default outstanding; or 17.4.7 a disposal of non-core assets where the assets disposed of do not account for more than 10% of the consolidated net sales of the Group calculated on the basis of the financial statements of the Group delivered pursuant to Schedule 3 (CONDITIONS PRECEDENT) in respect of the preceding financial year PROVIDED THAT the exception contained in this sub-clause 17.4.7 shall apply to only one disposal or a related series of disposals of the same asset or business, during the term of the Facility; or 17.4.8 any disposal (other than those in sub-clauses 17.4.1 to 17.4.7 above) made on arms' length terms in any financial year of the Parent where the assets disposed of when aggregated with any other asset so disposed of in such financial year, do not account for more than 5% of the consolidated net sales of the Group calculated on the basis of the financial statements of the Group delivered pursuant to Schedule 3 (CONDITIONS PRECEDENT) in respect of the preceding financial year. 17.5 ACQUISITIONS It will not (and will procure that no member of the Group will) after the date of this Agreement (except with the written consent of an Instructing Group, such consent not to be unreasonably withheld or delayed), acquire or agree to acquire any business or parts of any business or any company or shares in any company, in each case outside the Group, except where the aggregate consideration (including any deferred consideration and any debt assumed and the book value of any assets acquired as part of the exchange of assets referred to in Clause 17.4.3 (DISPOSAL OF ASSETS)) for such acquisitions does not, in any financial year of the Parent exceed euro 750,000,000 PROVIDED THAT this Clause 17.5 does not apply to any routine capital expenditure in the ordinary course of business. 17.6 CARRY ON BUSINESS It will not make any material change in the overall nature of the business of the Group as conducted at the date of this Agreement. 17.7 COMPLIANCE WITH LAWS It will comply and ensure that all members of the Group comply, in all material respects, with all laws, orders, regulations, agreements or arrangements applicable to it or any of its assets and the terms of all permits, authorisations and licences where failure to do so would have a Material Adverse Effect. 17.8 INSURANCE It will maintain and will ensure that each Material Subsidiary maintains insurance relating to its assets and activities against those risks and at those levels which a company operating in the same field would usually maintain. 17.9 INFORMATION All information which will be supplied in writing (which includes all information supplied on any electronic data carrier or in any electronic form) by the Parent to the Banks under this Agreement will on the date it is supplied, be true, complete and accurate in all material respects and will not omit to state any material fact necessary to make such information, in the light of the circumstances under which such information is provided, not misleading and all forecasts and projections will have been prepared after taking due care and will be based on reasonable assumptions, but with no representation given as to their realisation. 17.10 NOTIFICATION OF EVENTS OF DEFAULT It will promptly inform the Facility Agent of the occurrence of any Event of Default or Potential Event of Default and, upon receipt of a written request to that effect from the Facility Agent, confirm to the Facility Agent that, save as previously notified to the Facility Agent or as notified in such confirmation, no Event of Default or Potential Event of Default has occurred. 17.11 MATERIAL LITIGATION It will notify the Facility Agent promptly after it becomes aware that any proceedings of the kind described in Clause 15.11 (LITIGATION) are being threatened or are pending. 17.12 ENVIRONMENTAL COMPLIANCE It will comply and ensure that all other members of the Group comply in all material respects with all Environmental Law and obtain and maintain any Environmental Permits and take all reasonable steps in anticipation of known or expected future changes to or obligations under the same, breach of which (or failure to obtain, maintain or take which) might reasonably be expected to have a Material Adverse Effect. 17.13 VARIATION OR WAIVER The Parent will not, and the Parent will procure that Nutricia will not, without the consent of the Arrangers: (i) waive or vary the original offer price for the tender of shares of Rexall Sundown; (ii) waive or vary the acceptance levels for the tender of shares of Rexall Sundown; (iii) extend the offer period for the tender of shares of Rexall Sundown beyond any period contemplated in the Offer Documents; or (iv) except as contemplated by this Agreement, alter in any material respect the way in which the consideration due to the Rexall Sundown shareholders is funded from that set out in the Offer Document. 17.14 OFFER 17.14.1 The Parent will use all reasonable endeavours to cause, at the earliest practicable time, the Merger to be consummated, once a majority of the outstanding shares in Rexall Sundown on a fully diluted basis have been acquired pursuant to the Offer, subject to and in accordance with the terms of the Merger Agreement and applicable law. 17.14.2 The Parent will keep the Facility Agent promptly informed of all material developments in relation only to the price, timing and (on request of the Facility Agent) the level of acceptances under Offer Documents. 17.15 ISSUER OF CONVERTIBLE BONDS The Parent shall be the issuer of the New Convertible Bonds, which New Convertible Bonds shall be subordinated in right of payment to the obligations of the Parent hereunder. 17.16 INTELLECTUAL PROPERTY Each Obligor shall, and shall procure that each Group member shall do all acts as are reasonably practicable to maintain, protect and safeguard the Intellectual Property necessary for the business of the relevant Group member where failure to do so could reasonably be expected to have a Material Adverse Effect and not terminate or discontinue the use of any such Intellectual Property where such termination or discontinuance could reasonably be expected to have a Material Adverse Effect. 18. EVENTS OF DEFAULT Each of Clause 18.1 (NON PAYMENT) to Clause 18.14 (VALIDITY) describes circumstances which constitute an Event of Default for the purposes of this Agreement. 18.1 NON-PAYMENT Any Obligor fails to pay any sum due under the Finance Documents when due except, in the case of interest payments only, where such non-payment is solely due to an administrative error and such amount is paid within three Business Days of the date upon which it become due. 18.2 SPECIFIC COVENANTS Any Obligor fails duly to perform or comply with any of its obligations under Clause 17.3 (NEGATIVE PLEDGE) to Clause 17.5 (ACQUISITIONS). 18.3 OTHER DEFAULTS Any Obligor fails to perform or comply with any of its other obligations under any Finance Document. There will not, however, be an Event of Default under this paragraph if the failure is, in the opinion of the Facility Agent, capable of remedy and is remedied within 10 Business Days. 18.4 UNTRUE STATEMENTS Any statement made, or deemed repeated, in any representation in any Finance Document, or in any document required to be delivered by any Obligor under any Finance Document, is untrue or misleading in any material respect when that statement is made or deemed repeated. 18.5 CROSS DEFAULT Any Financial Indebtedness of the Parent or any of its subsidiaries is not paid when due (or following any applicable original grace period), any Financial Indebtedness of the Parent or any of its subsidiaries is declared to be or otherwise becomes due and payable prior to its specified maturity, any commitment for any Financial Indebtedness of the Parent or any of its subsidiaries is cancelled or suspended by a creditor of the Parent or any of its subsidiaries or any creditor of the Parent or any of its subsidiaries becomes entitled to declare any Financial Indebtedness of the Parent or any of its subsidiaries due and payable prior to its specified maturity, PROVIDED THAT it shall not constitute an Event of Default if the aggregate amount (or its equivalent in euros) of all such Financial Indebtedness is less than euro 15,000,000. 18.6 INSOLVENCY AND REORGANISATION Any procedure is commenced with a view to the winding-up or re-organisation of the Parent or any Material Subsidiary (save for the purposes of a solvent reconstruction, amalgamation, reorganisation, merger or consolidation or which is on terms approved in advance by an Instructing Group), or with a view to the appointment of an administrator, receiver, administrative receiver, trustee in bankruptcy or similar officer in relation to the Parent or any Material Subsidiary or any of their assets. This procedure may be a Court procedure or any other step which under applicable law is a possible means of achieving any of those results. It will not be an Event of Default, however, if any procedure is commenced with a view to the insolvent winding up of a member of the Group and such procedure is frivolous or vexatious. 18.7 ENFORCEMENT OF SECURITY The holder of any Encumbrance over any of the assets of the Parent or any Material Subsidiary takes any step to enforce that Encumbrance. It will not be an Event of Default, however, if (a) the aggregate book value (or its equivalent in euros) of the assets subject to any enforcement is less than euro 1,000,000 or (b) if any procedure is commenced and such procedure is discharged within 30 days after being levied or enforced. 18.8 ATTACHMENT OR DISTRESS Any asset of the Parent or any Material Subsidiary is subject to attachment, sequestration, execution or any similar process. It will not be an Event of Default, however, if (a) the aggregate book value (or its equivalent in euros) of the assets subject to any attachment, sequestration, execution or any similar process is less than euro 1,000,000 or (b) if any procedure is commenced and such procedure is discharged within 30 days after being levied or enforced. 18.9 INABILITY TO PAY DEBTS Any of the following is true: 18.9.1 the Parent or any Material Subsidiary is unable to pay its debts as they fall due. 18.9.2 the value of the Parent's or any Material Subsidiary's assets is less than the amount of its liabilities (taking into account its contingent and prospective liabilities). 18.9.3 the Parent or any Material Subsidiary admits its inability to pay its debts as and when they fall due or seeks a composition or arrangement with its creditors generally or any class of them. 18.10 INSOLVENCY EQUIVALENCE Anything analogous to any of the events described in Clauses 18.6 (INSOLVENCY AND REORGANISATION), 18.7 (ENFORCEMENT OF SECURITY), 18.8 (ATTACHMENT OR DISTRESS) or 18.9 (INABILITY TO PAY DEBTS) occurs in any jurisdiction. 18.11 UNLAWFULNESS OR REPUDIATION It is unlawful for any Obligor to comply with its payment or other material obligations under any Finance Document, or any Obligor repudiates any of those obligations. 18.12 MATERIAL ADVERSE CHANGE There is a change in the business condition (financial or otherwise), operations, performance or prospects of the Group taken as a whole since the date at which its most recent audited financial statements were stated to be prepared which has a Material Adverse Effect. 18.13 LITIGATION The Parent or any of its subsidiaries is involved in any court or arbitration proceedings or such proceedings are pending or threatened which in each case would or is reasonably likely to restrain performance by any Obligor of its obligations under the Finance Documents or would have or is reasonably likely to have a Material Adverse Effect. 18.14 VALIDITY Any of the obligations of an Obligor under any of the Finance Documents cease to be valid and binding. PROVIDED ALWAYS THAT Rexall Sundown and its subsidiaries will be excluded from Clauses 18.2, 18.3, 18.4, 18.7, 18.8, 18.10 (to the extent it refers to and incorporates Clauses 18.7 and 18.8) and 18.13 for the period from the date of this Agreement until the date falling 60 days after the drawdown of the first Advance hereunder. 18.15 ACCELERATION AND CANCELLATION Upon the occurrence of an Event of Default and at any time thereafter whilst it is continuing, the Facility Agent may (and, if so instructed by an Instructing Group, shall) by notice to the Parent: 18.15.1 declare all or any part of the Advances to be immediately due and payable (whereupon the same shall become so payable together with accrued interest thereon and any other sums then owed by the Borrowers under the Finance Documents) or declare all or any part of the Advances to be due and payable on demand of the Facility Agent; and/or 18.15.2 declare that any undrawn portion of the Facility shall be cancelled, whereupon the same shall be cancelled and the Available Commitment of each Bank shall be reduced to zero. 18.16 ADVANCES DUE ON DEMAND If, pursuant to Clause 18.15 (ACCELERATION AND CANCELLATION), the Facility Agent declares all or any part of the Advances to be due and payable on demand of the Facility Agent, then, and at any time thereafter, the Facility Agent may (and, if so instructed by an Instructing Group, shall) by notice to the Borrowers: 18.16.1 require repayment of all or such part of the Advances on such date as it may specify in such notice (whereupon the same shall become due and payable on the date specified together with accrued interest thereon and any other sums then owed by the Borrowers under the Finance Documents) or withdraw its declaration with effect from such date as it may specify; and/or 18.16.2 select as the duration of any Interest Period which begins whilst such declaration remains in effect a period of two weeks or less. 19. GUARANTEE AND INDEMNITY 19.1 GUARANTEE AND INDEMNITY Each of the Guarantors irrevocably and unconditionally: 19.1.1 guarantees to each Finance Party the due and punctual observance and performance of all the terms, conditions and covenants on the part of each Borrower contained in the Finance Documents and agrees to pay from time to time on first demand any and every sum or sums of money which each Borrower is at any time liable to pay to any Finance Party under or pursuant to the Finance Documents and which has become due and payable but has not been paid at the time such demand is made; and 19.1.2 agrees as a primary obligation to indemnify each Finance Party from time to time on first demand from and against any loss incurred by any Finance Party as a result of any of the obligations of any Borrower under or pursuant to the Finance Documents being or becoming void, voidable, unenforceable or ineffective as against a Borrower for any reason whatsoever, whether or not known to any Finance Party or any other person, the amount of such loss being the amount which the person or persons suffering it would otherwise have been entitled to recover from that Borrower. 19.2 ADDITIONAL SECURITY The obligations of each Guarantor herein contained shall be in addition to and independent of every other security which any Finance Party may at any time hold in respect of any of any Obligor's obligations under the Finance Documents. 19.3 CONTINUING OBLIGATIONS The obligations of each Guarantor herein contained shall constitute and be continuing obligations notwithstanding any settlement of account or other matter or thing whatsoever and shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the obligations of the Obligors under the Finance Documents and shall continue in full force and effect until final payment in full of all amounts owing by any Obligor under the Finance Documents and total satisfaction of all the Obligors' actual and contingent obligations under the Finance Documents. 19.4 OBLIGATIONS NOT DISCHARGED Neither the obligations of each Guarantor herein contained nor the rights, powers and remedies conferred in respect of each Guarantor upon any Finance Party by the Finance Documents or by law shall be discharged, impaired or otherwise affected by: 19.4.1 the winding-up, dissolution, administration or re-organisation of any Obligor or any other person or any change in its status, function, control or ownership; 19.4.2 any of the obligations of any Obligor or any other person under the Finance Documents or under any other security taken in respect of any of its obligations under the Finance Documents being or becoming illegal, invalid, unenforceable or ineffective in any respect; 19.4.3 time or other indulgence being granted or agreed to be granted to any Obligor or any other person in respect of its obligations under the Finance Documents or under any such other security; 19.4.4 any amendment to, or any variation, waiver or release of, any obligation of any Obligor or any other person under the Finance Documents or under any such other security; 19.4.5 any failure to take, or fully to take, any security contemplated hereby or otherwise agreed to be taken in respect of any Obligor's obligations under the Finance Documents; 19.4.6 any failure to realise or fully to realise the value of, or any release, discharge, exchange or substitution of, any security taken in respect of any Obligor's obligations under the Finance Documents; or 19.4.7 any other act, event or omission which, but for this Clause 19.4, might operate to discharge, impair or otherwise affect any of the obligations of any Guarantor herein contained or any of the rights, powers or remedies conferred upon any of the Finance Parties by the Finance Documents or by law. 19.5 SETTLEMENT CONDITIONAL Any settlement or discharge between an Obligor and any of the Finance Parties shall be conditional upon no security or payment to any Finance Party by an Obligor or any other person on behalf of an Obligor being avoided or reduced by virtue of any laws relating to bankruptcy, insolvency, liquidation or similar laws of general application and, if any such security or payment is so avoided or reduced, each Finance Party shall be entitled to recover the value or amount of such security or payment from such Obligor subsequently as if such settlement or discharge had not occurred. 19.6 EXERCISE OF RIGHTS No Finance Party shall be obliged before exercising any of the rights, powers or remedies conferred upon them in respect of the Parent by the Finance Documents or by law: 19.6.1 to make any demand of any Obligor; 19.6.2 to take any action or obtain judgment in any court against any Obligor; 19.6.3 to make or file any claim or proof in a winding-up or dissolution of any Obligor; or 19.6.4 to enforce or seek to enforce any other security taken in respect of any of the obligations of any Obligor under the Finance Documents. 19.7 DEFERRAL OF GUARANTORS' RIGHTS Each Guarantor agrees that, so long as any amounts are or may be owed by an Obligor under the Finance Documents or an Obligor is under any actual or contingent obligations under the Finance Documents, it shall not exercise any rights which it may at any time have by reason of performance by it of its obligations under the Finance Documents: 19.7.1 to be indemnified by an Obligor; and/or 19.7.2 to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents; and/or 19.7.3 to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other security taken pursuant to, or in connection with, the Finance Documents by all or any of the Finance Parties. 19.8 SUSPENSE ACCOUNTS All moneys received, recovered or realised by a Bank by virtue of Clause 19.1 (GUARANTEE AND INDEMNITY) may, in that Bank's discretion, be credited to a suspense or impersonal account and may be held in such account for so long as such Bank thinks fit pending the application from time to time (as such Bank may think fit) of such moneys in or towards the payment and discharge of any amounts owing by an Obligor to such Bank under the Finance Documents. 20. FEES 20.1 FRONT END FEE The Parent shall pay to the Arrangers the fees specified in the letter of even date herewith from the Arrangers to the Parent at the times, and in the amounts, specified in such letter. 20.2 AGENCY FEE The Parent shall pay to the Facility Agent for its own account the agency fees specified in the letter of even date herewith from the Facility Agent to the Parent at the times, and in the amounts, specified in such letter. 21. COSTS AND EXPENSES 21.1 TRANSACTION EXPENSES The Parent shall, from time to time on demand of the Facility Agent, reimburse the Facility Agent and each of the Arrangers for all reasonable costs and expenses (including reasonable legal fees) together with any VAT thereon incurred by it in connection with the negotiation, preparation and execution of the Finance Documents, any other document referred to in the Finance Documents and the completion of the transactions therein contemplated. 21.2 PRESERVATION AND ENFORCEMENT OF RIGHTS The Parent shall, from time to time on demand of the Facility Agent, reimburse the Finance Parties for all costs and expenses (including reasonable legal fees) on a full indemnity basis together with any VAT thereon incurred in or in connection with the preservation and/or enforcement of any of the rights of the Finance Parties under the Finance Documents and any document referred to in the Finance Documents (including, without limitation, any costs and expenses relating to any investigation as to whether or not an Event of Default might have occurred or is likely to occur or any steps necessary or desirable in connection with any proposal for remedying or otherwise resolving an Event of Default or Potential Event of Default). 21.3 STAMP TAXES The Parent shall pay all stamp, registration and other taxes to which the Finance Documents, any other document referred to in the Finance Documents or any judgment given in connection therewith is or at any time may be subject and shall, from time to time on demand of the Facility Agent, indemnify the Finance Parties against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay in paying any such tax. 21.4 AMENDMENT COSTS If an Obligor requests any amendment, waiver or consent then the Parent shall, within five Business Days of demand by the Facility Agent, reimburse the Finance Parties for all costs and expenses (including reasonable legal fees) together with any VAT thereon incurred by such person in responding to or complying with such request. 21.5 BANKS' LIABILITIES FOR COSTS If the Parent fails to perform any of its obligations under this Clause 21, each Bank shall, in its Proportion, indemnify each of the Facility Agent and the Arrangers against any loss incurred by any of them as a result of such failure. 22. DEFAULT INTEREST AND BREAK COSTS 22.1 DEFAULT INTEREST PERIODS If any sum due and payable by an Obligor hereunder is not paid on the due date therefor in accordance with Clause 25 (PAYMENTS) or if any sum due and payable by an Obligor under any judgment of any court in connection herewith is not paid on the date of such judgment, the period beginning on such due date or, as the case may be, the date of such judgment and ending on the date upon which the obligation of such Obligor to pay such sum is discharged shall be divided into successive periods, each of which (other than the first) shall start on the last day of the preceding such period and the duration of each of which shall (except as otherwise provided in this Clause 22) be selected by the Facility Agent. 22.2 DEFAULT INTEREST An Unpaid Sum shall bear interest during each Interest Period in respect thereof at the rate per annum which is 1% per annum above the percentage rate which would apply to an Advance in the amount and currency of such Unpaid Sum and for the same Interest Period, PROVIDED THAT if such Unpaid Sum relates to an Advance which became due and payable on a day other than the last day of an Interest Period relating thereto: 22.2.1 the first Interest Period applicable to such Unpaid Sum shall be of a duration equal to the unexpired portion of the current Interest Period relating to that Advance; and 22.2.2 the percentage rate of interest applicable thereto from time to time during such period shall be that which exceeds by 1% the rate which would have been applicable to it had it not so fallen due. 22.3 PAYMENT OF DEFAULT INTEREST Any interest which shall have accrued under Clause 22.2 (DEFAULT INTEREST) in respect of an Unpaid Sum shall be due and payable and shall be paid by the Obligor owing such Unpaid Sum on the last day of each Interest Period in respect thereof or on such other dates as the Facility Agent may specify by notice to such Obligor. 22.4 BREAK COSTS If any Bank or the Facility Agent on its behalf receives or recovers all or any part of such Bank's share of an Advance or Unpaid Sum otherwise than on the last day of an Interest Period relating thereto, the Parent shall pay to the Facility Agent on demand for account of such Bank an amount equal to the amount (if any) by which (a) the additional interest which would have been payable on the amount so received or recovered had it been received or recovered on the last day of that Interest Period exceeds (b) the amount of interest which in the opinion of the Facility Agent would have been payable to the Facility Agent on the last day of that Interest Period in respect of a deposit in the currency of the amount so received or recovered equal to the amount so received or recovered placed by it with a prime bank in the European interbank market for a period starting on the third Business Day following the date of such receipt or recovery and ending on the last day of that Interest Period. 23. PARENT'S INDEMNITIES 23.1 PARENT'S INDEMNITY The Parent undertakes to indemnify: 23.1.1 each Finance Party against any cost, claim, loss, expense (including reasonable legal fees) or liability together with any VAT thereon, whether or not reasonably foreseeable, which it may sustain or incur as a consequence of the occurrence of any Event of Default or any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; 23.1.2 the Facility Agent against any cost or loss it may suffer or incur as a result of its entering into, or performing, any foreign exchange contract for the purposes Clause 25 (PAYMENTS); 23.1.3 each Bank against any cost or loss it may suffer under Clause 21.5 (BANKS' LIABILITIES FOR COSTS) or Clause 28.5 (INDEMNIFICATION); 23.1.4 each Bank against any cost or loss it may suffer or incur as a result of its funding or making arrangements to fund its portion of an Advance requested by any Borrower but not made by reason of the operation of any one or more of the provisions hereof; and 23.1.5 each Bank against any cost or loss it may suffer or any reduction in its return on capital that it would have been able to obtain but for entering into or performing its obligations under this Agreement as a result of the minimum reserve requirements imposed on it by the European Central Bank in relation to an Advance or funding an Advance. 23.2 CURRENCY INDEMNITY If any sum (a "SUM") due from an Obligor under the Finance Documents or any order, judgment given or made in relation thereto has to be converted from the currency (the "FIRST CURRENCY") in which such Sum is payable into another currency (the "SECOND CURRENCY") for the purpose of: 23.2.1 making or filing a claim or proof against such Obligor; or 23.2.2 obtaining or enforcing an order, judgment in any court or other tribunal, the Parent shall indemnify each person to whom such Sum is due from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used for such purpose to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to such person at the time of receipt of such Sum. 23.3 ACQUISITION INDEMNITY 23.3.1 The Parent shall indemnify the Facility Agent, each Arranger and each Bank (each an "INDEMNIFIED PARTY") from time to time within five Business Days of demand of the Indemnified Party, against any cost, claim, loss, expense (including reasonable legal fees) or liability together with VAT thereon, whether or not reasonably foreseeable, which the relevant Indemnified Party may sustain or properly incur (except to the extent that the same result from the negligence or wilful misconduct or breach of Finance Documents of that Indemnified Party) arising out of a claim or action of any person relating to the Offer or any acquisition by Nutricia or any person acting in concert with the Parent or Nutricia of any shares of Rexall Sundown or any use of the proceeds of any Advance. 23.3.2 Any Indemnified Party intending to invoke sub-clause 23.3.1 shall give prompt notice in writing to the Parent upon such Indemnified Party becoming aware of any actual or potential claim, damage, loss, cost or expense, and the Parent shall thereafter be entitled to be joined as party in any proceeding and/or to give directions to the relevant Indemnified Party in relation to the conduct of such proceeding PROVIDED THAT (a) the Parent gives promptly notice in writing of its intention to give such directions to the Indemnified Party, (b) the Parent gives such directions taking into account at all times the business sensitivities and franchise position of the Indemnified Party and (c) the Parent does not give directions in respect of regulatory or supervisory proceedings of any governmental authority or other similar proceedings. 23.3.3 No Indemnified Party shall settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate (each a "SETTLEMENT") any such proceedings without the Parent's prior written consent (such consent not to be unreasonably withheld or delayed, taking into account without limitation the cost to the Parent and that Indemnified Party of continuing, the likely outcome of that proceeding and the adverse effects (actual or potential) on the business interests and/or reputation of the Parent and that Indemnified Party of not settling). The Parent shall not be liable to indemnify any Indemnified Party for any settlement of any proceeding made or effected without the Parent's prior written consent. 23.3.4 The Parent will lose its right to give directions in relation to any proceedings if (a) it breaches any obligations hereunder or (b) at the written request of the Indemnified Party, and in respect of (b) the Parent's obligation to indemnify the Indemnified Party will cease on the date of such request. 23.3.5 The Parent further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Obligors or any of their shareholders or creditors for or in connection with the transactions referred to above, except to the extent such liability results from such Indemnified Party's negligence, wilful misconduct or any breach of the Finance Documents by the Indemnified Party. 24. CURRENCY OF ACCOUNT AND PAYMENT The euro is the currency of account and payment for each and every sum at any time due from an Obligor hereunder, PROVIDED THAT: 24.1.1 each repayment of an Advance or Unpaid Sum or a part thereof shall be made in the currency in which such Advance or Unpaid Sum is denominated at the time of that repayment; 24.1.2 each payment of interest shall be made in the currency in which the sum in respect of which such interest is payable is denominated; 24.1.3 each payment in respect of costs and expenses shall be made in the currency in which the same were incurred; 24.1.4 each payment pursuant to Clause 10.2 (TAX INDEMNITY), Clause 12.1 (INCREASED COSTS) or Clause 23.1 (PARENT'S INDEMNITY) shall be made in the currency specified by the party claiming thereunder; and 24.1.5 any amount expressed to be payable in a currency other than euros shall be paid in that other currency. If after the date of this Agreement a member state becomes a Subsequent Participant, all obligations under this Agreement (including any obligation in respect of any Bank's Available Commitment) to make a payment in its national currency unit shall be redenominated into the euro unit on the date on which it becomes a Subsequent Participant (but otherwise in accordance with EMU Legislation). 25. PAYMENTS 25.1 PAYMENTS TO THE FACILITY AGENT On each date on which this Agreement requires an amount to be paid by an Obligor or a Bank, such Obligor or, as the case may be, such Bank shall make the same available to the Facility Agent for value on the due date at such time and in such funds and to such account with such bank as the Facility Agent shall specify from time to time. 25.2 PAYMENTS BY THE FACILITY AGENT 25.2.1 Save as otherwise provided herein, each payment received by the Facility Agent pursuant to Clause 25.1 (PAYMENTS TO THE FACILITY AGENT) shall: (a) in the case of a payment received for the account of a Borrower, be made available by the Facility Agent to such Borrower by application: (i) first, in or towards payment (on the date, and in the currency and funds, of receipt) of any amount then due from such Borrower hereunder to the person from whom the amount was so received or in or towards the purchase of any amount of any currency to be so applied; and (ii) secondly, in or towards payment (on the date, and in the currency and funds, of receipt) to such account with such bank in the principal financial centre of the country of the currency of such payment (or, in the relation to the euro in the financial centre in a Participating Member State) as such Borrower shall have previously notified to the Facility Agent for this purpose; and (b) in the case of any other payment, be made available by the Facility Agent to the person entitled to receive the payment in accordance with this Agreement (in the case of a Bank, for the account of its Facility Office) for value as soon as reasonably practicable after receipt by the Facility Agent by transfer to the account of the person with a bank in the principal financial centre of the country of the currency of such payment (or, in relation to the euro, in the financial centre in a Participating Member State) as that person has previously notified to the Facility Agent. 25.2.2 A payment will be deemed to have been made by the Facility Agent on the date on which it is required to be made under this Agreement if the Facility Agent has, on or before that date, taken steps to make that payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Facility Agent in order to make the payment. 25.3 PAYMENTS BY THE FACILITY AGENT TO THE BANKS Any amount payable by the Facility Agent to the Banks under this Agreement in the currency of a Participating Member State shall be paid in the euro unit. 25.4 NO SET-OFF All payments required to be made by an Obligor hereunder shall be calculated without reference to any set-off or counterclaim and shall be made free and clear of and without any deduction for or on account of any set-off or counterclaim. 25.5 CLAWBACK Where a sum is to be paid hereunder to the Facility Agent for account of another person, the Facility Agent shall not be obliged to make the same available to that other person or to enter into or perform any exchange contract in connection therewith until it has been able to establish to its satisfaction that it has actually received such sum, but if it does so and it proves to be the case that it had not actually received such sum, then the person to whom such sum or the proceeds of such exchange contract was so made available shall on request refund the same to the Facility Agent together with an amount sufficient to indemnify the Facility Agent against any cost or loss it may have suffered or incurred by reason of its having paid out such sum or the proceeds of such exchange contract prior to its having received such sum. 25.6 PARTIAL PAYMENTS If and whenever a payment is made by an Obligor hereunder and the Facility Agent receives an amount less than the due amount of such payment the Facility Agent may apply the amount received towards the obligations of the Obligors under this Agreement in the following order: 25.6.1 FIRST, in or towards payment of any unpaid fees, costs and expenses of each of the Facility Agent and the Arrangers; 25.6.2 SECONDLY, in or towards payment PRO RATA of any accrued interest due but unpaid; 25.6.3 THIRDLY, in or towards payment PRO RATA of any principal due but unpaid; and 25.6.4 FOURTHLY, in or towards payment PRO RATA of any other sum due but unpaid. 25.7 VARIATION OF PARTIAL PAYMENTS The order of payments set out in Clause 25.6 (PARTIAL PAYMENTS) shall override any appropriation made by the Obligor to which the partial payment relates but the order set out in sub-clauses 25.6.2, 25.6.3 and 25.6.4 of Clause 25.6 (PARTIAL PAYMENTS) may be varied if agreed by all the Banks. 25.8 BUSINESS DAYS 25.8.1 Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). 25.8.2 During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal at the rate payable on the original due date. 26. SET-OFF 26.1 CONTRACTUAL SET-OFF Each Obligor authorises each Bank following the occurrence of an Event of Default to apply any credit balance to which such Obligor is entitled on any account of such Obligor with such Bank in satisfaction of any sum due and payable from such Obligor to such Bank under the Finance Documents but unpaid. For this purpose, each Bank is authorised to purchase with the moneys standing to the credit of any such account such other currencies as may be necessary to effect such application. 26.2 SET-OFF NOT MANDATORY No Bank shall be obliged to exercise any right given to it by Clause 26.1 (CONTRACTUAL SET-OFF). 27. SHARING 27.1 PAYMENTS TO BANKS If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an Obligor to a payment due under this Agreement and such amount is received or recovered other than in accordance with Clause 25 (PAYMENTS), then such Recovering Bank shall: 27.1.1 notify the Facility Agent of such receipt or recovery; 27.1.2 at the request of the Facility Agent, promptly pay to the Facility Agent an amount (the "SHARING PAYMENT") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by such Recovering Bank as its share of any payment to be made in accordance with Clause 25.6 (PARTIAL PAYMENTS). 27.2 REDISTRIBUTION OF PAYMENTS The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Bank) in accordance with Clause 25.6 (PARTIAL PAYMENTS). 27.3 RECOVERING BANK'S RIGHTS The Recovering Bank will be subrogated into the rights of the parties which have shared in a redistribution pursuant to Clause 27.2 (REDISTRIBUTION OF PAYMENTS) in respect of the Sharing Payment (and the relevant Obligor shall be liable to the Recovering Bank in an amount equal to the Sharing Payment). 27.4 REPAYABLE RECOVERIES If any part of the Sharing Payment received or recovered by a Recovering Bank becomes repayable and is repaid by such Recovering Bank, then: 27.4.1 each party which has received a share of such Sharing Payment pursuant to Clause 27.2 (REDISTRIBUTION OF PAYMENTS) shall, upon request of the Facility Agent, pay to the Facility Agent for account of such Recovering Bank an amount equal to its share of such Sharing Payment; and 27.4.2 such Recovering Bank's rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing party for the amount so reimbursed. 27.5 EXCEPTION This Clause 27 shall not apply if the Recovering Bank would not, after making any payment pursuant hereto, have a valid and enforceable claim against the relevant Obligor. 27.6 RECOVERIES THROUGH LEGAL PROCEEDINGS If any Bank intends to commence any action in any court it shall give prior notice to the Facility Agent and the other Banks. If any Bank shall commence any action in any court to enforce its rights hereunder and, as a result thereof or in connection therewith, receives any amount, then such Bank shall not be required to share any portion of such amount with any Bank which has the legal right to, but does not, join in such action or commence and diligently prosecute a separate action to enforce its rights in another court. 28. THE AGENT, THE ARRANGERS AND THE BANKS 28.1 APPOINTMENT OF THE FACILITY AGENT Each of the Arrangers and the Banks hereby appoints the Facility Agent to act as its agent in connection herewith and authorises the Facility Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Facility Agent by the terms hereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto. 28.2 FACILITY AGENT'S DISCRETIONS The Facility Agent may: 28.2.1 assume, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by an Obligor in connection with the Finance Documents is true, (b) no Event of Default or Potential Event of Default (except with respect to an Event of Default under Clause 18.1 hereof) has occurred, (c) no Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested herein upon an Instructing Group, the Banks or any other person or group of persons has not been exercised; 28.2.2 assume that (a) the Facility Office of each Bank is that notified to it by such Bank in writing and (b) the information provided by each Bank pursuant to Clause 31 (NOTICES), Clause 28.14 (BANKS' MANDATORY COST DETAILS) and Schedule 10 (MANDATORY COSTS) is true and correct in all respects until it has received from such Bank notice of a change to the Facility Office or any such information and act upon any such notice until the same is superseded by a further notice; 28.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained; 28.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor upon a certificate signed by or on behalf of such Obligor; 28.2.5 rely upon any communication or document believed by it to be genuine; 28.2.6 refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until instructed by an Instructing Group as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised; 28.2.7 refrain from acting in accordance with any instructions of an Instructing Group to begin any legal action or proceeding arising out of or in connection with this Agreement until it shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which it will or may expend or incur in complying with such instructions; and 28.2.8 assume (unless it has specific notice to the contrary) that any notice or request made by the Parent is made on behalf of all the Obligors. 28.3 FACILITY AGENT'S OBLIGATIONS The Facility Agent shall: 28.3.1 promptly inform each Bank of the contents of any notice or document received by it in its capacity as Facility Agent from an Obligor under the Finance Documents; 28.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by an Obligor in the due performance of or compliance with its obligations under the Finance Documents of which the Facility Agent has notice from any other party hereto or, with relation to Clause 18.1 (NON-PAYMENT) of which it has actual knowledge; 28.3.3 save as otherwise provided herein, act as agent hereunder in accordance with any instructions given to it by an Instructing Group, which instructions shall be binding on the Arrangers and the Banks; and 28.3.4 if so instructed by an Instructing Group, refrain from exercising any right, power or discretion vested in it as agent hereunder. The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature. 28.4 EXCLUDED OBLIGATIONS Notwithstanding anything to the contrary expressed or implied herein, neither the Facility Agent nor any of the Arrangers shall: 28.4.1 be bound to enquire as to (a) whether or not any representation made or deemed to be made by an Obligor in connection with the Finance Documents is true, (b) the occurrence or otherwise of any Event of Default or Potential Event of Default, (c) the performance by an Obligor of its obligations under the Finance Documents or (d) any breach of or default by an Obligor of or under its obligations under the Finance Documents; 28.4.2 be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account; 28.4.3 be bound to disclose to any other person any information relating to any member of the Group if (a) such person, on providing such information, expressly stated to the Facility Agent or, as the case may be, the Arrangers, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit of any person; 28.4.4 be under any obligations other than those for which express provision is made herein; or 28.4.5 be or be deemed to be a fiduciary for any other party hereto. 28.5 INDEMNIFICATION Each Bank shall, in its Proportion, from time to time on demand by the Facility Agent, indemnify the Facility Agent against any and all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which the Facility Agent may incur, otherwise than by reason of its own gross negligence or wilful misconduct, in acting in its capacity as agent hereunder (other than any which have been reimbursed by the Parent pursuant to Clause 23.1 (PARENT'S INDEMNITY)). 28.6 EXCLUSION OF LIABILITIES Except in the case of gross negligence or wilful misconduct, none of the Facility Agent and the Arrangers accepts any responsibility: 28.6.1 for the adequacy, accuracy and/or completeness of any information supplied by the Facility Agent or the Arrangers, by an Obligor or by any other person in connection with the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; 28.6.2 for the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; or 28.6.3 for the exercise of, or the failure to exercise, any judgement, discretion or power given to any of them by or in connection with the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents. Accordingly, none of the Facility Agent and the Arrangers shall be under any liability (whether in negligence or otherwise) in respect of such matters, save in the case of gross negligence or wilful misconduct. 28.7 NO ACTIONS Each of the Banks agrees that it will not assert or seek to assert against any director, officer or employee of the Facility Agent or any/the Arranger any claim it might have against any of them in respect of the matters referred to in Clause 28.6 (EXCLUSION OF LIABILITIES). 28.8 BUSINESS WITH THE GROUP The Facility Agent and each of the Arrangers may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group. 28.9 RESIGNATION The Facility Agent may resign its appointment hereunder at any time without assigning any reason therefor by giving not less than thirty days' prior notice to that effect to each of the other parties hereto, PROVIDED THAT no such resignation shall be effective until a successor for the Facility Agent is appointed in accordance with the succeeding provisions of this Clause 28. 28.10 REMOVAL OF FACILITY AGENT An Instructing Group may remove the Facility Agent from its role as agent hereunder by giving notice to that effect to each of the other parties hereto. Such removal shall take effect only when a successor to the Facility Agent is appointed in accordance with the terms hereof. 28.11 SUCCESSOR FACILITY AGENT If the Facility Agent gives notice of its resignation pursuant to Clause 28.9 (RESIGNATION) or it is removed pursuant to Clause 28.10 (REMOVAL OF FACILITY AGENT) then any reputable and experienced bank or other financial institution may be appointed as a successor to the Facility Agent by an Instructing Group during the period of such notice but, if no such successor is so appointed, the Facility Agent may appoint such a successor itself. 28.12 RIGHTS AND OBLIGATIONS If a successor to the Facility Agent is appointed under the provisions of Clause 28.11 (SUCCESSOR FACILITY AGENT), then (a) the retiring or departing Facility Agent shall be discharged from any further obligation hereunder but shall remain entitled to the benefit of the provisions of this Clause 28 and (b) its successor and each of the other parties hereto shall have the same rights and obligations amongst themselves as they would have had if such successor had been a party hereto. 28.13 OWN RESPONSIBILITY It is understood and agreed by each Bank that at all times it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigation into all risks arising under or in connection with the Finance Documents including, but not limited to: 28.13.1 the financial condition, creditworthiness, condition, affairs, status and nature of each member of the Group; 28.13.2 the legality, validity, effectiveness, adequacy and enforceability of the Finance Documents and any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; 28.13.3 whether such Bank has recourse, and the nature and extent of that recourse, against an Obligor or any other person or any of their respective assets under or in connection with the Finance Documents, the transactions therein contemplated or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; and 28.13.4 the adequacy, accuracy and/or completeness of the Information Memorandum and any other information provided by the Facility Agent or the Arrangers, an Obligor, or by any other person in connection with the Finance Documents, the transactions contemplated therein or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents. Accordingly, each Bank acknowledges to the Facility Agent and the Arrangers that it has not relied on and will not hereafter rely on the Facility Agent and the Arrangers or any of them in respect of any of these matters. 28.14 BANKS' MANDATORY COST DETAILS Each Bank will supply the Facility Agent with such information and in such detail as the Facility Agent may require in order to calculate the Mandatory Cost Rate in accordance with Schedule 11 (MANDATORY COSTS). 28.15 AGENCY DIVISION SEPARATE In acting as agent hereunder for the Banks, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments and, notwithstanding the foregoing provisions of this Clause 28, any information received by some other division or department of the Facility Agent may be treated as confidential and shall not be regarded as having been given to the Facility Agent's agency division. 29. ASSIGNMENTS AND TRANSFERS 29.1 BINDING AGREEMENT The Finance Documents shall be binding upon and enure to the benefit of each party hereto and its or any subsequent successors and Transferees. 29.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS No Obligor shall be entitled to assign or transfer all or any of its rights, benefits and obligations under the Finance Documents. 29.3 ASSIGNMENTS AND TRANSFERS BY BANKS Any Bank may, at any time, assign all or any of its rights and benefits under the Finance Documents or transfer in accordance with Clause 29.5 (TRANSFERS BY BANKS) all or any of its rights, benefits and obligations under the Finance Documents to a bank or financial institution, PROVIDED THAT (save in the case of any such assignment or transfer (a) to any subsidiary or holding company, or to any subsidiary of any holding company, of such Bank or (b) to any other Bank or (c) if an Event of Default is continuing) no such assignment or transfer may be made without the prior written consent of the Borrower. 29.4 ASSIGNMENTS BY BANKS If any Bank assigns all or any of its rights and benefits under the Finance Documents in accordance with 29.3 (ASSIGNMENTS AND TRANSFERS BY BANKS), then, unless and until the assignee has delivered a notice to the Facility Agent confirming in favour of the Facility Agent, the Arrangers and the other Banks that it shall be under the same obligations towards each of them as it would have been under if it had been an original party hereto as a Bank (whereupon such assignee shall become a party hereto as a "Bank"), the Facility Agent, the Arrangers and the other Banks shall not be obliged to recognise such assignee as having the rights against each of them which it would have had if it had been such a party hereto. 29.5 TRANSFERS BY BANKS If any Bank wishes to transfer all or any of its rights, benefits and/or obligations under the Finance Documents as contemplated in Clause 29.3 (ASSIGNMENTS AND TRANSFERS BY BANKS), then such transfer may be effected by the delivery to the Facility Agent of a duly completed Transfer Certificate executed by such Bank and the relevant Transferee in which event, on the later of the Transfer Date specified in such Transfer Certificate and the fifth Business Day after (or such earlier Business Day endorsed by the Facility Agent on such Transfer Certificate falling on or after) the date of delivery of such Transfer Certificate to the Facility Agent: 29.5.1 to the extent that in such Transfer Certificate the Bank party thereto seeks to transfer by novation its rights, benefits and obligations under the Finance Documents, each of the Obligors and such Bank shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another shall be cancelled (such rights and obligations being referred to in this Clause 28.5 as "DISCHARGED RIGHTS AND OBLIGATIONS"); 29.5.2 each of the Obligors and the Transferee party thereto shall assume obligations towards one another and/or acquire rights against one another which differ from such discharged rights and obligations only insofar as such Obligor and such Transferee have assumed and/or acquired the same in place of such Obligor and such Bank; 29.5.3 the Facility Agent, the Arrangers, such Transferee and the other Banks shall acquire the same rights and benefits and assume the same obligations between themselves as they would have acquired and assumed had such Transferee been an original party hereto as a Bank with the rights, benefits and/or obligations acquired or assumed by it as a result of such transfer and to that extent the Facility Agent, the Arrangers and the relevant Bank shall each be released from further obligations to each other under the Finance Documents; and 29.5.4 such Transferee shall become a party hereto as a "Bank". 29.6 ASSIGNMENT AND TRANSFER FEES On the date upon which an assignment takes effect pursuant to Clause 29.4 (ASSIGNMENTS BY BANKS) or a transfer takes effect pursuant to Clause 29.5 (TRANSFERS BY BANKS) the relevant assignee or Transferee shall pay to the Facility Agent for its own account a fee of euro 1,000. 29.7 DISCLOSURE OF INFORMATION Any Bank may disclose to any person: 29.7.1 to (or through) whom such Bank assigns or transfers (or may potentially assign or transfer) all or any of its rights, benefits and obligations under the Finance Documents; 29.7.2 with (or through) whom such Bank enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, the Finance Documents or any Obligor; or 29.7.3 to whom information may be required to be disclosed by any applicable law, such information about any Obligor or the Group and the Finance Documents as such Bank shall consider appropriate PROVIDED THAT, in relation to sub-clauses 29.7.1 and 29.7.2, the person to whom such information is to be given has entered into a Confidentiality Undertaking. 29.8 NOTIFICATION The Facility Agent shall within fourteen days of receiving a Transfer Certificate notify the Parent and the other Banks of any assignment or transfer completed pursuant to this Clause 29. 29.9 NO INCREASED COSTS If, at any time, any Bank assigns or transfers any of its rights, benefits and obligations hereunder and, at the time of such assignment or transfer there arises an obligation on the part of an Obligor under Clause 10 (TAXES) or Clause 12.1 (INCREASED COSTS) to pay to such Bank or its assignee or Transferee any amount in excess of the amount it would have then been obliged to pay but for the assignment or transfer, then the Obligor shall not be obliged to pay the amount of such excess. 30. CALCULATIONS AND EVIDENCE OF DEBT 30.1 BASIS OF ACCRUAL Any interest, commission or fee accruing hereunder will accrue from day to day and is calculated on the basis of actual number of days elapsed and a year of 360 days or in any case where market practice differs, in accordance with market practice. 30.2 QUOTATIONS If on any occasion a Reference Bank or Bank fails to supply the Facility Agent with a quotation required of it under the foregoing provisions of this Agreement, the rate for which such quotation was required shall be determined from those quotations which are supplied to the Facility Agent, provided that, in relation to determining EURIBOR, this Clause 30.2 shall not apply if only one Reference Bank supplies a quotation. 30.3 EVIDENCE OF DEBT Each Bank shall maintain in accordance with its usual practice accounts evidencing the amounts from time to time lent by and owing to it hereunder. 30.4 CONTROL ACCOUNTS The Facility Agent shall maintain on its books a control account or accounts in which shall be recorded (a) the amount of any Advance or any Unpaid Sum and each Bank's share therein, (b) the amount of all principal, interest and other sums due or to become due from an Obligor and each Bank's share therein and (c) the amount of any sum received or recovered by the Facility Agent hereunder and each Bank's share therein. 30.5 PRIMA FACIE EVIDENCE In any legal action or proceeding arising out of or in connection with this Agreement, the entries made in the accounts maintained pursuant to Clause 30.3 (EVIDENCE OF DEBT) and Clause 30.4 (CONTROL ACCOUNTS) shall be PRIMA FACIE evidence of the existence and amounts of the specified obligations of the Obligors. 30.6 ROUNDING AND OTHER CONSEQUENTIAL CHANGES 30.6.1 Without prejudice and in addition to any method of conversion or rounding prescribed by any EMU Legislation and without prejudice to (a) the liabilities for indebtedness of the Obligors to the Banks under or pursuant to the Finance Documents or (b) the Available Facility, any reference in the Finance Documents to a minimum amount (or an integral multiple thereof) in a national currency of a Subsequent Participant to be paid to or by the Facility Agent shall, immediately upon it becoming a Subsequent Participant, be replaced by a reference to such reasonably comparable and convenient amount (or an integral multiple thereof) in the euro unit as the Facility Agent may specify. 30.6.2 Save as expressly provided in this Clause 30.6, the Finance Documents shall be subject to such reasonable changes of construction as the Facility Agent may at the relevant time specify to be appropriate to reflect the adoption of the euro in any Participating Member State and any relevant market conventions or practices relating to the euro. PROVIDED THAT this Clause shall not reduce or increase any actual or contingent liability arising under this Agreement. 30.7 CERTIFICATES OF BANKS A certificate of a Bank as to: 30.7.1 the amount by which a sum payable to it hereunder is to be increased under Clause 10.1 (TAX GROSS-UP); 30.7.2 the amount for the time being required to indemnify it against any such cost, payment or liability as is mentioned in Clause 10.2 (TAX INDEMNITY), Clause 12.1 (INCREASED COSTS) or Clause 23.1 (PARENT'S INDEMNITY); or 30.7.3 the amount of any credit, relief, remission or repayment as is mentioned in Clause 11.3 (TAX CREDIT PAYMENT), shall, in the absence of manifest error, be PRIMA FACIE evidence of the existence and amounts of the specified obligations of the Obligors. 30.8 FACILITY AGENT'S CERTIFICATES A certificate of the Facility Agent as to the amount at any time due from a Borrower or the Parent hereunder or the amount which, but for any of the obligations of such Borrower or the Parent hereunder being or becoming void, voidable, unenforceable or ineffective, at any time would have been due from such Borrower hereunder shall, in the absence of manifest error, be conclusive for the purposes of Clause 19 (GUARANTEE AND INDEMNITY). 31. REMEDIES AND WAIVERS, PARTIAL INVALIDITY 31.1 REMEDIES AND WAIVERS No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law. 31.2 PARTIAL INVALIDITY If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions thereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. 32. NOTICES 32.1 COMMUNICATIONS IN WRITING Each communication to be made under the Finance Documents shall be made in writing and, unless otherwise stated, shall be made by fax or letter. 32.2 ADDRESSES Any communication or document to be made or delivered pursuant to the Finance Documents shall (unless the recipient of such communication or document has, by fifteen days' written notice to the Facility Agent, specified another address or fax number) be made or delivered to the address or fax number: 32.2.1 in the case of the Obligors and the Facility Agent, identified with its name below; and 32.2.2 in the case of each Bank, notified in writing to the Facility Agent prior to the date hereof (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee), PROVIDED THAT not more than one address may be specified by each party pursuant to this Clause 32.2 at any time. Any Bank with two Facility Offices shall specify its main address and fax number for the purpose of notices. 32.3 DELIVERY Any communication or document to be made or delivered by one person to another pursuant to the Finance Documents shall: 32.3.1 if by way of fax, be deemed to have been received when transmission has been completed; and 32.3.2 if by way of letter, be deemed to have been delivered when left at the relevant address or, as the case may be, ten days after being deposited in the post postage prepaid in an envelope addressed to it at such address, PROVIDED THAT any communication or document to be made or delivered to the Facility Agent shall be effective only when received by its agency division and then only if the same is expressly marked for the attention of the department or officer identified with the Facility Agent's signature below (or such other department or officer as the Facility Agent shall from time to time specify for this purpose). 32.4 NOTIFICATION OF CHANGES Promptly upon receipt of notification of a change of address or fax number pursuant to Clause 32.2 (ADDRESSES) or changing its own address or fax number, the Facility Agent shall notify the other parties hereto of such change. 32.5 ENGLISH LANGUAGE Each communication and document made or delivered by one party to another pursuant to the Finance Documents shall be in the English language or accompanied by a translation thereof into English certified (by an officer of the person making or delivering the same) as being a true and accurate translation thereof. 32.6 DEEMED RECEIPT BY THE OBLIGORS Any communication or document made or delivered to the Parent in accordance with Clause 32.3 (DELIVERY) shall be deemed to have been made or delivered to each of the Obligors. 33. COUNTERPARTS This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. 34. AMENDMENTS 34.1 AMENDMENTS If the Facility Agent has the prior consent of an Instructing Group, the Facility Agent and the Obligors may from time to time agree in writing to amend the Finance Documents or to waive, prospectively or retrospectively, any of the requirements of the Finance Document and any amendments or waivers so agreed shall be binding on all the Finance Parties, PROVIDED THAT no such waiver or amendment shall subject any Finance Party hereto to any new or additional obligations without the consent of such Finance Party. 34.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS An amendment or waiver which relates to: 34.2.1 Clause 27 (SHARING) or this Clause 34; 34.2.2 a change in the principal amount of or currency of any Advance, or deferral of the Repayment Date; 34.2.3 a reduction in the Margin or the amount or deferral of any payment of principal, interest, fees or commission payable; 34.2.4 a release of the Parent from any of its obligations set out in Clause 19 (GUARANTEE AND INDEMNITY); 34.2.5 the definition of Instructing Group or Availability Period; or 34.2.6 any provision which expressly requires the consent or approval of all the Banks, shall not be made without the prior consent of all the Banks. 34.3 EXCEPTIONS Notwithstanding any other provisions hereof, the Facility Agent shall not be obliged to agree to any such amendment or waiver if the same would: 34.3.1 amend or waive this Clause 34, Clause 21 (COSTS AND EXPENSES) or Clause 28 (THE FACILITY AGENT, THE ARRANGERS AND THE BANKS); or 34.3.2 otherwise amend or waive any of the Facility Agent's rights hereunder or subject the Facility Agent or the Arrangers to any additional obligations hereunder. 35. GOVERNING LAW This Agreement is governed by English law. 36. JURISDICTION 36.1 ENGLISH COURTS The courts of England have exclusive jurisdiction to settle any dispute (a "DISPUTE") arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or the consequences of its nullity). 36.2 CONVENIENT FORUM The parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary. 36.3 NON-EXCLUSIVE JURISDICTION This Clause 36 is for the benefit of the Finance Parties only. As a result and notwithstanding Clause 36.1 (ENGLISH COURTS), it does not prevent any Finance Party from taking proceedings relating to a Dispute ("PROCEEDINGS") in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent Proceedings in any number of jurisdictions. 36.4 SERVICE OF PROCESS Each Obligor agrees that the documents which start any Proceedings and any other documents required to be served in relation to those Proceedings may be served on it at Nutricia Holdings Limited of Newmarket Avenue, Whitehorse Business Park, Trowbridge, Wiltshire BA14 0XQ. If any Obligor ceases to have a place of business in Great Britain or, as the case may be, the appointment of the person mentioned in this Clause 36.4 ceases to be effective, the relevant Obligor shall immediately appoint another person in England to accept service of process on its behalf in England. If an Obligor fails to do so (and such failure continues for a period of not less than fourteen days), the Facility Agent shall be entitled to appoint such a person by notice to such Obligor. Nothing contained herein shall restrict the right to serve process in any other manner allowed by law. This Clause 36.4 applies to Proceedings in England and to Proceedings elsewhere. 37. BORROWERS' AGENT Each Borrower irrevocably authorises and instructs the Borrowers' Agent on its behalf as agent to give and receive all notices (including any Notices of Drawdown) and to take all other action (including the giving of consents or the signing of certificates which require to be given or executed for the purpose of the Finance Documents and the acceptance of any proposal) as may be necessary or desirable in connection with the Facility or the Finance Documents. Each Borrower confirms that it will be bound by any action taken by the Borrowers' Agent under or in connection with the Facility or the Finance Documents. AS WITNESS the hands of the duly authorised representatives of the parties hereto the day and year first before written. SCHEDULE 1 THE ORIGINAL PARTIES PART A THE ORIGINAL BANKS
BANK COMMITMENT (EURO) Citibank, N.A. 350,000,000 Deutsche Bank AG 350,000,000 ING Bank N.V. 350,000,000 --------------------------- TOTAL EUR 1,050,000,000
PART B THE BORROWERS
NAME OF 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 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 a euro term facility was made available to a group of borrowers including Koninklijke Numico N.V. by a group of banks on whose behalf ING Bank N.V. acted as agent in connection therewith. 1. Terms defined in the Credit Agreement shall, subject to any contrary indication, have the same meanings herein. The terms Bank, Transferee and Portion Transferred are defined in the schedule hereto. 2. The Bank (i) confirms that the details in the schedule hereto under the heading "BANK'S PARTICIPATION IN THE FACILITY" and "ADVANCES" accurately summarises its participation in the Credit Agreement and the Interest Period of any existing Advances and (ii) requests the Transferee to accept and procure the transfer by novation to the Transferee of the Portion Transferred (specified in the schedule hereto) of its Commitment and/or its participation in such Advance(s) by counter-signing and delivering this Transfer Certificate to the Facility Agent at its address for the service of notices specified in the Credit Agreement. 3. The Transferee hereby requests the Facility Agent to accept this Transfer Certificate as being delivered to the Facility Agent pursuant to and for the purposes of Clause 29.5 (TRANSFERS BY BANKS) of the Credit Agreement so as to take effect in accordance with the terms thereof on the Transfer Date or on such later date as may be determined in accordance with the terms thereof. 4. The Transferee confirms that it has received a copy of the Credit Agreement together with such other information as it has required in connection with this transaction and that it has not relied and will not hereafter rely on the Bank to check or enquire on its behalf into the legality, validity, effectiveness, adequacy, accuracy or completeness of any such information and further agrees that it has not relied and will not rely on the Bank to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Obligors. 5. The Transferee hereby undertakes with the Bank and each of the other parties to the Credit Agreement that it will perform in accordance with their terms all those obligations which by the terms of the Finance Documents will be assumed by it after delivery of this Transfer Certificate to the Facility Agent and satisfaction of the conditions (if any) subject to which this Transfer Certificate is expressed to take effect. 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 Facility: Bank's Commitment Portion Transferred 5. Advance(s): Amount of Bank's Participation Interest Period Portion Transferred
[Transferor Bank] [Transferee Bank] By: By: Date: Date: ------------------------------------------------------------------------------- ADMINISTRATIVE DETAILS OF TRANSFEREE Address: Contact Name: Account for Payments in euros: Fax: Telephone: ------------------------------------------------------------------------------- * Details of the Bank's Available Commitment should not be completed after the last day of the Availability Period. SCHEDULE 3 CONDITIONS PRECEDENT 1. In relation to each Obligor: (a) a copy, certified as at the date of this Agreement a true and up-to-date copy by an Authorised Signatory of such Obligor, of the constitutional documents of such Obligor; (b) a copy, certified as at the date of this Agreement a true and up-to-date copy by an Authorised Signatory of such Obligor, of a board resolution (including the supervising board, if relevant) of such Obligor approving in the case of the Parent and each Obligor the execution, delivery and performance of the Finance Documents and the terms and conditions thereof and in the case of the Parent only, also approving the Equity Package and the Acquisition, the Offer Documents and the Merger Agreement, and in each case authorising a named person or persons to sign the Finance Documents and, if applicable, Offer Documents, the Merger Agreement and any documents to be delivered by such Obligor pursuant thereto; (c) a certificate of an Authorised Signatory of such Obligor setting out the names and signatures of the persons authorised to sign, on behalf of such Obligor, the Finance Documents and any documents to be delivered by such Obligor pursuant thereto; and (d) a certificate of an Authorised Signatory of such Obligor confirming that utilisation of the Facility would not breach any restriction of its borrowing powers. 2. A copy, certified a true copy by or on behalf of each Obligor, of each such law, decree, consent, licence, approval, registration or declaration as is, in the opinion of counsel to the Banks, necessary to render this Agreement legal, valid, binding and enforceable, to make this Agreement admissible in evidence in each Obligor's jurisdiction of incorporation and to enable each Obligor to perform its obligations hereunder. 3. An opinion of the General Counsel to each Obligor incorporated in a jurisdiction other than England and Wales satisfactory in form and substance to the Facility Agent and in substantially the form distributed to the Banks prior to the signing of this Agreement. 4. Opinions of Clifford Chance, solicitors to the Facility Agent, in substantially the forms distributed to the Banks prior to the signing of this Agreement. 5. A copy, certified a true copy by an Authorised Signatory of the Parent, of the latest annual audited consolidated accounts of the Group and the Parent's unconsolidated accounts. 6. Evidence that the party specified in Clause 36.4 (SERVICE OF PROCESS) has agreed to act as the agent of each Obligor for the service of process in England. 7. A certified copy of the following Offer Documents and the Press Release: (a) Offer to Purchase; (b) Letter of Transmittal to Tender Shares; (c) Notice of Offer to Purchase for cash all outstanding shares; (d) Notice of Guaranteed delivery; (e) Schedule 14D-9 (SEC filing); (f) Agreement and Plan of Merger (Merger Agreement); and (g) Press Release. 8. Certificate from a director of the Parent and Nutricia certifying: (a) the Minimum Condition (as defined in the Merger Agreement) has been fulfilled and sufficient common stock of Rexall Sundown has been tendered in the Offer to enable Nutricia to effect the Merger without requiring any affirmative votes from public shareholders of Rexall Sundown; (b) that to their knowledge, neither the Parent nor Nutricia have waived or varied any of the terms described in Clause 17.13 of the Credit Agreement; (c) that the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 has elapsed; (d) that legal advice has been taken from legal counsel in all relevant jurisdictions, and on the basis of such advice, all governmental filings, approvals, consents or tax rulings which are required to be obtained by the Parent or Nutricia prior to accepting the tendered shares have been obtained, except where the failure to obtain such filings, approvals or tax rulings would not have a Material Adverse Effect on the Parent's or Nutricia's ability to accept and retain such shares; and 9. The report of the depositary agent indicating the number of shares of Rexall Sundown which have been tendered to and accepted by Nutricia. 10. Receipt simultaneously of the proceeds of the Senior Loan in an amount at least equal to the amount required by Nutricia, together with funds available from other sources, to fund the initial acquisition cost of the common stock of Rexall Sundown. SCHEDULE 4 NOTICE OF DRAWDOWN From: [Insert name of Borrower] To: ING Bank NV Dated: Dear Sirs, 1. We refer to the agreement (the "CREDIT AGREEMENT") dated 2 June 2000 and made between a group of borrowers including Koninklijke Numico N.V., ING Bank NV as agent and the financial institutions named therein as Banks. Terms defined in the Credit Agreement shall have the same meaning in this notice. 2. This notice is irrevocable. 3. We hereby give you notice that, pursuant to the Credit Agreement and on [date of proposed Advance], we wish to borrow an Advance having an amount of euro [-] upon the terms and subject to the conditions contained therein. [We would like this Advance to have a first Interest Period of [ ] duration.] 4. [Payment Directions]. 5. We confirm that, at the date hereof, the Repeated Representations are true in all material respects and no Event of Default is continuing. 6. The proceeds of this drawdown should be credited to [insert account details]. Yours faithfully ............................. Authorised Signatory for and on behalf of [Name of Borrower] SCHEDULE 5 EXISTING ENCUMBRANCES NAME OF OBLIGOR DETAILS OF ENCUMBRANCE Koninklijke Numico N.V. Those Encumbrances as set forth in the Numico Annual Report for the year ended 31 December 1999.
SCHEDULE 6 MANDATORY COSTS 1. The Mandatory Cost Rate is an addition to the interest rate to compensate Banks for the cost of compliance with the requirements of the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions). 2. On the first day of each Interest Period (or as soon as possible thereafter) the Facility Agent shall calculate, as a percentage rate, a rate (the "ADDITIONAL COSTS RATE") for each Bank, in accordance with paragraph 3 below. The Mandatory Cost Rate will be calculated by the Facility Agent as a weighted average of the Banks' additional costs rates (weighted in proportion to the percentage participation of each Bank in the relevant Advance) and will be expressed as a percentage rate per annum. 3. The additional costs rate for each Bank lending from a Facility Office in the United Kingdom will be calculated by the Facility Agent as follows: E x 0.01 ------ per cent. per annum. 300 Where: E is the rate of charge payable by that Bank to the Financial Services Authority pursuant to the Fees Regulations (but, for this purpose, ignoring any minimum fee required pursuant to the Fees Regulations) and expressed in pounds per L1,000,000 of the Fee Base of that Bank. 4. For the purposes of this Schedule: (a) "FEE REGULATIONS" means the Banking Supervision (Fees) Regulations 1999 or such other law as may be in force from time to time in respect of the payment of fees for banking supervision; and (b) "FEE BASE" has the meaning given to it, and will be calculated in accordance with, the Fees Regulations. 5. Each Bank shall supply any information required by the Facility Agent for the purpose of calculating the additional costs rate. In particular, but without limitation, each Bank shall supply the following information in writing on or prior to the date on which it becomes a Bank: (a) its jurisdiction of incorporation and the jurisdiction of its Facility Office; and (b) such other information that the Facility Agent may reasonably require for such purpose. Each Bank shall promptly notify the Facility Agent in writing of any change to the information provided by it pursuant to this paragraph. 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. SIGNATURES THE PARENT KONINKLIJKE NUMICO N.V. By: /s/ J.H.C. VAN DER VEN Address: Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Fax: +31 79 353 9671 Attention: General Counsel THE BORROWERS KONINKLIJKE NUMICO N.V. By: /s/ J.H.C. VAN DER VEN Address: Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Fax: +31 79 353 9671 Attention: General Counsel NUMICO NATIONAAL B.V. By: /s/ J.H.C. VAN DER VEN Address: Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Fax: +31 79 353 9671 Attention: General Counsel NUTRICIA INTERNATIONAL B.V. By: /s/ J.H.C. VAN DER VEN Address: Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Fax: +31 79 353 9671 Attention: General Counsel PHARMAFOOD B.V. By: /s/ J.H.C. VAN DER VEN Address: Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Fax: +31 79 353 9671 Attention: General Counsel THE GUARANTORS KONINKLIJKE NUMICO N.V. By: /s/ J.H.C. VAN DER VEN Address: Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Fax: +31 79 353 9671 Attention: General Counsel NUMICO NATIONAAL B.V. By: /s/ J.H.C. VAN DER VEN Address: Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Fax: +31 79 353 9671 Attention: General Counsel NUTRICIA INTERNATIONAL B.V. By: /s/ J.H.C. VAN DER VEN Address: Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Fax: +31 79 353 9671 Attention: General Counsel PHARMAFOOD B.V. By: /s/ J.H.C. VAN DER VEN Address: Rokkeveenseweg 49 2712 PJ Zoetermeer The Netherlands Fax: +31 79 353 9671 Attention: General Counsel 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/ JOHN STAFFORD Address: Bijlmerplein 888 P.O. Box 1800 1000 BV Amsterdam The Netherlands Fax: +31 (0)20 652 2030 Attention: N.J. Klein 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: THE FACILITY AGENT ING BANK NV By: /s/ JOHN STAFFORD Address: Bijlmerplein 888 P.O. Box 1800 1000 BV Amsterdam The Netherlands Fax: +31 (0)20 576 8782 Attention: Ms. Johanna ten Veen/HE 0306 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, AMSTERDAM BRANCH By: /s/ SUSANNE BALTES /s/ JOS VAN HELDEN Address: Herengracht 450-454 1017 CA Amsterdam The Netherlands Fax: 00 31 20 620 8389 Attention: Mrs Susanne Baltes ING BANK N.V. By: /s/ JOHN STAFFORD Address: Bijlmerplein 888 P.O. Box 1800 1000 BV Amsterdam The Netherlands Fax: +31 (0)20 565 1020 Attention: D. I. Hiel/HE 0109