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Facilities Agreement

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Title:

Facilities Agreement

Entities:

ABN AMRO Bank N.V.; Barclays Bank plc; Citicorp USA, Inc.; ID Biomedical Corp.; PNC Bank, NA; Royal Bank of Scotland plc; Shire Laboratories Inc.; Shire Pharmaceuticals Group plc; Transkaryotic Therapies Inc.; Bank of New York

Date:

2005

Size:

Preview shows 84KB of 279KB total

Price:

$53

ID:

#1185788

► Loans ► Facilities Agreements
► Financial
► Financial ► Money Center Banks
► Biotech & Drugs ► Pharmaceutical Preparations
► Biotech & Drugs ► Biological Products

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US$800,000,000

FACILITIES AGREEMENT

dated 15 JUNE 2005

for

SHIRE PHARMACEUTICALS GROUP PLC

arranged by

ABN AMRO BANK N.V.

BARCLAYS CAPITAL

CITIGROUP GLOBAL MARKETS LIMITED

HSBC BANK PLC

THE ROYAL BANK OF SCOTLAND PLC

with

HSBC BANK PLC

acting as Facility Agent

HSBC BANK PLC

acting as Euro Swingline Agent

HSBC BANK USA, NATIONAL ASSOCIATION

acting as Dollar Swingline Agent

MULTICURRENCY REVOLVING FACILITIES AGREEMENT

CONTENTS

CLAUSE		Page
1.	Definitions and Interpretations	1
2.	The Facilities	18
3.	Purpose	18
4.	Conditions of Utilisation	19
5.	Utilisation - Revolving Loans	21
6.	Utilisation - Swingline Loans	22
7.	Swingline Loans	27
8.	Selection of currencies	30
9.	Amount of optional currencies	31
10.	Repayment of Revolving Loans	32
11.	Illegality, Voluntary Prepayment and cancellation	32
12.	Mandatory Prepayment	33
13.	Restrictions	34
14.	Extension of Facility B	35
15.	Term-Out of Facility B	37
16.	Interest	39
17.	Interest Periods	40
18.	Changes to the calculation of interest	40
19.	Fees	42
20.	Tax Gross Up and Indemnities	43
21.	Increased costs	48
22.	Other indemnities	49
23.	Mitigation by the Lenders	50
24.	Costs and expenses	51
25.	Guarantee and indemnity	52
26.	Representations	55
27.	Information undertakings	58
28.	financial covenants	61
29.	General undertakings	66
30.	Events of Default	71
31.	Changes to the Lenders	76

32.	Changes to the Obligors	79
33.	Role of the Agent and the Arranger	82
34.	Conduct of business by the Finance Parties	87
35.	Sharing among the Finance parties	87
36.	Payment mechanics	90
37.	Set-off	92
38.	Notices	92
39.	Calculations and certificates	94
40.	Partial invalidity	94
41.	Remedies and waivers	95
42.	Amendments and waivers	95
43.	Counterparts	95
44.	Governing law	96
45.	Enforcement	96
SCHEDULE 1 THE ORIGINAL PARTIES		97
	Part I The Original Obligors	97
	Part II The Original Revolving Lenders	98
	Part III The Original Dollar Swingline Lenders	99
	Part IV The Original Euro Swingline Lenders	99
SCHEDULE 2 CONDITIONS PRECEDENT		101
	Part I Conditions precedent to initial Utilisation	101
	Part II Conditions precedent required to be delivered by an Additional Obligor	103
SCHEDULE 3 REQUESTS		105
	Part I Utilisation Request - Revolving Loan	105
	Part II Utilisation Request - Swingline Loan	106
	Part III Selection Notice	107
SCHEDULE 4 TERM-OUT REQUEST		108
SCHEDULE 5 MANDATORY COST FORMULAE		109
SCHEDULE 6 FORM OF TRANSFER CERTIFICATE		112
SCHEDULE 7 FORM OF ACCESSION LETTER		114
SCHEDULE 8 FORM OF RESIGNATION LETTER		115
SCHEDULE 9 FORM OF COMPLIANCE CERTIFICATE		116
SCHEDULE 10 EXISTING SECURITY		117

SCHEDULE 11 EXISTING LOANS	118
SCHEDULE 12 EXISTING FINANCIAL INDEBTEDNESS	119
SCHEDULE 13 FORM OF CONFIDENTIALITY UNDERTAKING	120
SCHEDULE 14 TIMETABLES	126

THIS AGREEMENT is dated 15 June 2005 and made between:

(1)	SHIRE PHARMACEUTICALS GROUP PLC (the Company);

(2)	THE SUBSIDIARIES of the Parent Company, together with the Parent Company, listed in Part I of Schedule 1 (The Original Parties) as original borrowers (the Original Borrowers);

(3)	SHIRE PHARMACEUTICALS GROUP PLC (the Original Guarantor);

(4)	ABN AMRO BANK N.V., BARCLAYS CAPITAL, CITIGROUP GLOBAL MARKETS LIMITED, HSBC BANK PLC AND THE ROYAL BANK OF SCOTLAND PLC as mandated lead arrangers (whether acting individually or together, the Arrangers);

(5)	THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as revolving lenders (the Original Revolving Lenders);

(6)	THE FINANCIAL INSTITUTIONS listed in Part III of Schedule 1 (The Original Parties) as dollar swingline lenders (the Original Dollar Swingline Lenders);

(7)	THE FINANCIAL INSTITUTIONS listed in Part IV of Schedule 1 (The Original Parties) as euro swingline lenders (the Original Euro Swingline Lenders);

(8)	HSBC BANK PLC as facility agent of the other Finance Parties (in this capacity, the Facility Agent);

(9)	HSBC BANK PLC as euro swingline agent of the other Finance Parties (in this capacity, the Euro Swingline Agent); and

(10)	HSBC BANK USA, NATIONAL ASSOCIATION as dollar swingline agent of the other Finance Parties (in this capacity, the Dollar Swingline Agent).

IT IS AGREED as follows:

SECTION 1
INTERPRETATION

1.	DEFINITIONS AND INTERPRETATIONS

1.1	Definitions

	In this Agreement:

	Accession Letter means a document substantially in the form set out in Schedule 7 (Form of Accession Letter).

	Acquisition means the transaction pursuant to which a member of the Group becomes the owner of record of all of the issued share capital of Transkaryotic or a successor of Transkaryotic.

	Additional Borrower means a company which becomes an Additional Borrower in accordance with Clause 32 (Changes to the Obligors).

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	Additional Cost Rate has the meaning given to it in Schedule 5 (Mandatory Cost formulae). Additional Guarantor means a company which becomes an Additional Guarantor in accordance with Clause 32 (Changes to the Obligors). Additional Obligor means an Additional Borrower or an Additional Guarantor. Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company. Agents means the Dollar Swingline Agent, the Euro Swingline Agent and the Facility Agent, and Agent means, as the context may require, any of them. Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration. Availability Period means:

	(a)	in relation to Facility A, the period from and including the date of this Agreement to and including the date which is one Month prior to the Facility A Termination Date; and

	(b)	in relation to Facility B, the period from and including the date of this Agreement to and including the Facility B Termination Date.

	Available Revolving Commitment means a Revolving Lenders Revolving Commitment minus:

	(a)	the Base Currency Amount of its participation in any outstanding Revolving Loans; and

	(b)	in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Revolving Loans that are due to be made under that Facility on or before the proposed Utilisation Date,

	other than, in either case, that Revolving Lenders participation in any Revolving Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date. Available Revolving Facility means, in relation to a Facility, the aggregate for the time being of each Revolving Lenders Available Revolving Commitment. Base Currency means US Dollars. Base Currency Amount means, in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower (or the Parent Company on behalf of a Borrower) for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Facility Agents Spot Rate of Exchange on the date which is, subject as otherwise provided, three Business Days before the Utilisation Date or, if later, on the date the Facility Agent receives the Utilisation

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Request) adjusted to reflect any repayment, prepayment, consolidation or division of the Loan.

Basel II Implementation Date means the date on which Basel II (as defined in sub-clause 21.3.1(f) of Clause 21.3 (Exceptions) is deemed to apply to the Finance Parties being 1 January 2007.

Borrower means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 32 (Changes to the Obligors).

Break Costs means the amount (if any) by which:

(a)

the interest excluding the Margin which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

	exceeds:

	(b)	the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.


	Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London and:

	(a)	(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency; or

	(b)	(in relation to any date for payment or purchase of euro) any TARGET Day.

	Code means, at any date, the U.S. Internal Revenue Code of 1986 and the regulations promulgated thereunder as in effect at such date. Commitment means a Revolving Commitment or a Swingline Commitment. Compliance Certificate means a certificate substantially in the form set out in Schedule 9 (Form of Compliance Certificate). Confidentiality Undertaking means a confidentiality undertaking substantially in the form as set out in Schedule 13 (Form of Confidentiality Undertaking) or in any other form agreed between the Parent Company and the Facility Agent. Debt Proceeds means the cash proceeds receivable by any member of the Group upon the issue by any member of the Group of any debt capital markets instruments, including, without limitation, equity linked or convertible bonds or notes, after deducting expenses incurred by any member of the Group with respect to that issue.

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	Default means an Event of Default or any event or circumstance specified in Clause 30 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing with an event or circumstance specified in Clause 30 (Events of Default)) be an Event of Default. Disposal means a sale, lease, licence, transfer, loan or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions). Disposal Proceeds means the cash consideration receivable by any member of the Group (including any amount receivable in repayment of intercompany debt) for any disposal under sub-clause 29.4.2(k) of Clause 29.4 (Disposals) made by any member of the Group except for Excluded Disposal Proceeds and after deducting:

	(a)	expenses and provisions for liability incurred by any member of the Group with respect to that disposal; and

	(b)	any Tax incurred and required to be paid by any member of the Group in connection with that disposal (as reasonably determined by that member of the Group, on the basis of existing rates and taking account of any available credit, deduction or allowance).

	Dollar Swingline Facility means the dollar swingline facility as described in paragraph (a) of Clause 7.1 (Swingline). Dollar Swingline Lender means:

	(a)	an Original Dollar Swingline Lender listed in Part III of Schedule 1 (The Original Parties) as a dollar swingline lender; or

	(b)	any other person that becomes a Dollar Swingline Lender after the date of this Agreement in accordance with Clause 31 (Changes to the Lenders)

	which in each case has not ceased to be a Party in accordance with the terms of this Agreement. Dollar Swingline Loan means a loan to be made under the Dollar Swingline Facility or the principal amount outstanding for the time being of that loan. Employee Plan means an employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which a U.S. Obligor or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of ERISA. ERISA means, at any date, the United States Employee Retirement Income Security Act of 1974 and the regulations promulgated and rulings issued under it, all as the same may be in effect at such date.

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	ERISA Affiliate means any person that for purposes of Title I and Title IV of ERISA and Section 412 of the Code would be deemed at any relevant time to be a single employer with a U.S. Obligor, pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA. ERISA Event means:

	(a)	any reportable event, as defined in Section 4043 of ERISA, with respect to an Employee Plan, as to which PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified of such event;

	(b)	the filing of a notice of intent to terminate any Employee Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Employee Plan or the termination of any Employee Plan under Section 4041(c) of ERISA;

	(c)	the institution of proceedings under Section 4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee to administer, any Employee Plan;

	(d)	the failure to make a required contribution to any Employee Plan that would result in the imposition of an encumbrance under Section 412 of the Code or Section 302 of ERISA securing an amount in excess of US$50,000,000 or the filing of any request for a minimum funding waiver under Section 412 of the Code with respect to any Employee Plan or Multiemployer Plan;

	(e)	an engagement in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA;

	(f)	the complete or partial withdrawal of any U.S. Obligor or any ERISA Affiliate from a Multiemployer Plan; and

	(g)	an Obligor or an ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Employee Plan (other than premiums due and not delinquent under Section 4007 of ERISA).

	Euro Swingline Facility means the euro swingline facility as described in paragraph (b) Clause 7.1 (Swingline). Euro Swingline Lender means:

	(a)	an Original Euro Swingline Lender listed in Part IV of Schedule 1 (The Original Parties) as a euro swingline lender; or

	(b)	any other person that becomes a Euro Swingline Lender after the date of this Agreement in accordance with Clause 31 (Changes to the Lenders)

	which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

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	Euro Swingline Loan means a loan to be made under the Euro Swingline Facility or the principal amount outstanding for the time being of that loan. Event of Default means any event or circumstance specified as such in Clause 30 (Events of Default). Excluded Disposal Proceeds means:

	(a)	any Disposal Proceeds which are within 180 days of the date of the relevant Disposal applied in or towards the purchase of assets used in the business of the Group; and

	(b)	any other Disposal Proceeds to the extent that, when aggregated with all other Disposal Proceeds receivable by the Group in the same financial year, they do not exceed US$100,000,000.

	Existing Financial Indebtedness means the existing Financial Indebtedness listed in Schedule 12 (Existing Financial Indebtedness). Existing Loans means the existing loans listed in Schedule 11 (Existing Loans). Existing Security means the existing Security listed in Schedule 10 (Existing Security). Facility means a Revolving Facility or the Swingline Facility. Facility A means the revolving loan facility made available under this Agreement as described in Clause 2.1 (Grant of Facility A). Facility A Commitment means:

	(a)	in relation to an Original Revolving Lender, the amount in the Base Currency set opposite its name under the heading Facility A Commitment in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility A Commitment transferred to it under this Agreement; and

	(b)	in relation to any other Revolving Lender, the amount in the Base Currency of any Facility A Commitment transferred to it under this Agreement,

	to the extent not cancelled, reduced or transferred by it under this Agreement. Facility A Lender means a Lender under Facility A. Facility A Loan means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan. Facility A Termination Date means the date which is the third anniversary of the date of this Agreement. Facility Agents Spot Rate of Exchange means the Facility Agents spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day.

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	Facility B means the revolving loan facility made available under this Agreement as described in Clause 2.2 (Grant of Facility B). Facility B Commitment means:

	(a)	in relation to an Original Revolving Lender, the amount in the Base Currency set opposite its name under the heading Facility B Commitment in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility B Commitment transferred to it under this Agreement; and

	(b)	in relation to any other Revolving Lender, the amount in the Base Currency of any Facility B Commitment transferred to it under this Agreement,

	to the extent not cancelled, reduced or transferred by it under this Agreement. Facility B Loan means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan. Facility B Termination Date means the date which is 364 days after the date of this Agreement subject to an extension pursuant to Clause 14 (Extension of Facility B). Facility Office means:

	(a)	in relation to a Revolving Lender, the office identified as such opposite such Lenders name in Part II of Schedule 1 (The Original Parties) (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;

	(b)	in relation to a Dollar Swingline Lender, the office identified as such opposite such Swingline Lenders name in Part III of Schedule 1 (The Original Parties) (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 in the United States of America (in the same time zone as New York City) as it may from time to time select; and

	(c)	in relation to a Euro Swingline Lender, the office identified as such opposite such Swingline Lenders name in Part IV of Schedule 1 (The Original Parties) (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.

	Fee Letter means any letter or letters dated on or about the date of this Agreement between the Arranger and the Company (or an Agent and the Company) setting out any of the fees referred to in Clause 19 (Fees). Finance Document means this Agreement, any Fee Letter, any Accession Letter, any Resignation Letter, any Utilisation Request, any Selection Notice and any other document designated as such by the Facility Agent and the Parent Company. Finance Party means any Agent, the Arranger or a Lender. Financial Indebtedness means any indebtedness for or in respect of:

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	(a)	moneys borrowed;

	(b)	any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

	(c)	any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

	(d)	the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with U.S. GAAP, be treated as a finance or capital lease;

	(e)	receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

	(f)	any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

	(g)	any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

	(h)	any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;

	(i)	any amount raised by the issue of redeemable shares which are redeemable prior to the Facility A Termination Date;

	(j)	any amount of any liability under an advance or deferred purchase agreement if one of the primary reasons behind the entry into this agreement is to raise finance;

	(k)	(without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.

	Group means the Company (or, after completion of the Holding Company Scheme, New Holdco) and its Subsidiaries for the time being, including after closing of the Acquisition, Transkaryotic and its Subsidiaries. Guarantor means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 32 (Changes to the Obligors). Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary. Holding Company Scheme means the scheme of arrangement through which New Holdco is established as the Holding Company of the Company. Interest Period means, in relation to a Loan (not being a Swingline Loan), each period determined in accordance with Clause 17 (Interest Periods), in relation to an Unpaid Sum, each period determined in accordance with Clause 16.3 (Default interest), and in relation to a

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	Swingline Loan, the period determined in accordance with sub-clause 6.3.1 of Clause 6.3 (Completion of a Utilisation Request for Swingline Loans).

	IRS means the United States Internal Revenue Service or any successor.

	Lender means a Swingline Lender and/or a Revolving Lender, as the context requires.

	LIBOR means, in relation to any Loan:

	(a)	the applicable Screen Rate; or

	(b)	(if no Screen Rate is available for the currency or Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request quoted by three Reference Banks to leading banks in the London interbank market,

	as of the Specified Time on the Quotation Day for the offering of deposits in the currency of that Loan and for a period comparable to the Interest Period for that Loan. Loan means a Revolving Loan, a Swingline Loan or a Term-Out Loan. Majority Lenders means:

	(a)	if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate not less than 66 2/3% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated not less than 66 2/3% of the Total Commitments immediately prior to the reduction); or

	(b)	at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate not less than 66 2/3% of all the Loans then outstanding.

	Mandatory Cost means the percentage rate per annum calculated by the Facility Agent in accordance with Schedule 5 (Mandatory Cost formulae). Margin means:

(a)

0.35 per cent. per annum prior to initial receipt by the Facility Agent of the Compliance Certificate