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Shire plc – ‘8-K’ for 1/11/16 – EX-10.2

On:  Monday, 1/11/16, at 5:08pm ET   ·   For:  1/11/16   ·   Accession #:  1047469-16-9624   ·   File #:  0-29630

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 1/11/16  Shire plc                         8-K:1,7,9   1/11/16    5:1.8M                                   Merrill Corp/New/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                      HTML     54K 
 2: EX-2.1      Plan of Acquisition, Reorganization, Arrangement,   HTML    667K 
                          Liquidation or Succession                              
 3: EX-10.1     Material Contract                                   HTML     86K 
 4: EX-10.2     Material Contract                                   HTML    644K 
 5: EX-99.1     Miscellaneous Exhibit                               HTML     57K 

Exhibit 10.2

EXECUTION VERSION

SHIRE PLC

as the Company

BARCLAYS BANK PLC and MORGAN STANLEY BANK INTERNATIONAL LIMITED

as mandated lead arrangers and bookrunners

with

BARCLAYS BANK PLC

as Agent

US$18,000,000,000

BRIDGE FACILITIES AGREEMENT

DATED 11 JANUARY 2016

Slaughter and May
One Bunhill Row
London EC1Y 8YY
(MJXT/AZN/MRG/AEZW)
533125364

CONTENTS

        THIS AGREEMENT is dated 11 January 2016 and made between:

(1)

SHIRE PLC, a registered public company incorporated in Jersey under the Companies (Jersey) Law 1991 with registered number 99854 (the "Company", the "Original Borrower" and the "Original Guarantor");



(2)

BARCLAYS BANK PLC and MORGAN STANLEY BANK INTERNATIONAL LIMITED as mandated lead arrangers and bookrunners (the "Original Arrangers");



(3)

THE FINANCIAL INSTITUTIONS listed in Part I of Schedule 1 (The Original Lenders) as Facility A lenders (the "Original Facility A Lenders");



(4)

THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Lenders) as Facility B lenders (the "Original Facility B Lenders" and together with the Original Facility A Lenders, the "Original Lenders"); and



(5)

BARCLAYS BANK PLC as facility agent of the other Finance Parties (in this capacity, the "Agent").

        IT IS AGREED as follows:

SECTION 1
INTERPRETATION

1.     DEFINITIONS AND INTERPRETATION

1.1   Definitions

        In this Agreement:

        "Acceptable Bank" means a bank or financial institution which has a rating for its long term unsecured and non-credit enhanced debt obligations of A or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or A2 or higher by Moody's Investors Service Limited or a comparable rating from an internationally recognised credit rating agency.

        "Accession Letter" means a document substantially in the form set out in Schedule 6 (Form of Accession Letter).

        "Acquisition" means a Merger, with all of the issued and outstanding Target Shares cancelled in the Merger, in each case, on the terms and subject to the conditions set forth in the Acquisition Agreement.

        "Acquisition Agreement" means the agreement and plan of merger, dated on or around the date of this Agreement, among the Company, the Merger Subsidiary and the Target, together with such amendments, waivers or supplements made from time to time in accordance with the terms of this Agreement.

        "Acquisition Costs" means:

(a)

any refinancing, repayment, conversion or redemption of any indebtedness of the Target or its Subsidiaries or any amount required to finance the Target and its Subsidiaries;



(b)

all fees, claims (including settlements thereof), costs, expenses or stamp, registration, transfer or other Taxes incurred by (or required to be paid by) any member of the Group in connection with the Acquisition or the Facilities or any refinancing, repayment, redemption or financing referred to in paragraph (a); and



(c)

any integration or reorganisation costs resulting from the Acquisition or any amounts payable to third parties in connection with, or as a result of, the Acquisition.

        "Acquisition CP Satisfaction" means all conditions to the Merger under the Acquisition Agreement have been satisfied (or waived as permitted by Clause 24.10 (Conduct of the Acquisition)).

        "Acquisition Date" means the date on which "Closing Date" (as defined in the Acquisition Agreement) occurs.

        "Acquisition Documents" means:

(a)

the Acquisition Agreement; and



(b)

the Certificate of Merger,

in each case together with such amendments, waivers or supplements made from time to time in accordance with the terms of this Agreement.

        "Additional Borrower" means each company which becomes an Additional Borrower in accordance with Clause 28 (Changes to the Obligors).

        "Additional Guarantor" means each company which becomes an Additional Guarantor in accordance with Clause 28 (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, provided that, in relation to The Royal Bank of Scotland plc (to the extent that it is or becomes a Finance Party), the term "Affiliate" shall include The Royal Bank of Scotland N.V. and each of its Affiliates, but shall not include (i) the UK government or any member or instrumentality thereof, including Her Majesty's Treasury and UK Financial Investments Limited (or any directors, officers, employees or entities thereof) or (ii) any persons or entities controlled by or under common control with the UK government or any member or instrumentality thereof (including HM Treasury and UK Financial Investments Limited) and which are not part of The Royal Bank of Scotland Group plc and its subsidiaries or subsidiary undertakings.

        "Arranger" means the Original Arrangers and any bank or financial institution that accedes to this Agreement as an arranger pursuant to Syndication.

        "Assignment Agreement" means an agreement substantially in the form set out in Schedule 4 (Form of Assignment Agreement).

        "Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

        "Availability Period" means:

(a)

with respect to Facility A, the period from and including the date of this Agreement to and including the date falling one week prior to the Original Facility A Maturity Date, provided that if an Extension Notice has been delivered in accordance with Clause 10 (Extension option) the Availability Period in respect of any and all proposed Extended Facility A Commitments shall be the period from and including the date of this Agreement to and including the date falling 15 Months after the date of this Agreement; and



(b)

with respect to Facility B, the period from and including the date of this Agreement to and including the date falling one week prior to the Original Facility B Maturity Date, provided that if an Extension Notice has been delivered in accordance with Clause 10 (Extension option) the Availability Period in respect of any and all proposed Extended Facility B Commitments shall be the period from and including the date of this Agreement to and including the date falling one week prior to the date falling 12 Months after the Original Maturity Date.

        "Available Commitment" means:

(a)

in relation to Facility A, a Facility A Lender's Facility A Commitment; or

2

(b)

in relation to Facility B, a Facility B Lender's Facility B Commitment,

minus:

(i)

the amount of its participation in any outstanding Loans under that Facility; and



(ii)

in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,

other than, in relation to Facility B, any Facility B Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

        "Available Facility" means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.

        "Borrower" means the Original Borrower or an Additional Borrower, unless it has ceased to be a Borrower in accordance with Clause 28 (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 total 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 New York City.

        "Capital Markets Proceeds" means the cash proceeds received by any member of the Group from any public or private issue, sale or offering of any debt securities (including, without limitation, any bond or note issuance or private placement or instruments that are convertible into equity or any hybrid instrument but excluding any debt securities that are mandatorily convertible into equity) in the national or international debt capital markets by any member of the Group but excluding any commercial paper issued by any member of the Group but, in each case, after deducting any reasonable fees, costs, expenses and Taxes which are incurred by members of the Group with respect to that issue, sale or offering to persons who are not members of the Group.

        "Certificate of Merger" means the certificate of merger specifying the effective time of the Merger filed with the Secretary of State of the State of Delaware in such form as required by, and executed in accordance with, the relevant provisions of Section 251 of the General Corporation Law of the State of Delaware.

        "Code" means, at any date, the US Internal Revenue Code of 1986 and the regulations promulgated thereunder as in effect at such date.

        "Commitment" means a Facility A Commitment or a Facility B Commitment.

        "Compliance Certificate" means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate).

        "Confidential Information" means all information relating to the Parent Company, any member of the Group, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in

3

its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

(a)

any member of the Group or any of its advisers; or



(b)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

(i)

information that:



(A)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39 (Confidential Information); or



(B)

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or



(C)

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and



(ii)

any Funding Rate or Reference Bank Quotation.

        "Confidentiality Undertaking" means a confidentiality undertaking substantially in the form as set out in Schedule 12 (Form of Confidentiality Undertaking) or in any other form agreed between the Parent Company and the Agent.

        "Controlled Group" means any trade or business, whether or not incorporated, which is under common control with an Obligor within the meaning of Section 4001 of ERISA or is part of a group that includes an Obligor and that is treated as a single employer under Section 414 of the Code. When any provision of this Agreement relates to a past event, the term "member of the Controlled Group" includes any person that was a member of the Controlled Group at the time of that past event.

        "CTA" means the Corporation Tax Act 2009.

        "Default" means an Event of Default or any event or circumstance specified in Clause 26 (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 26 (Events of Default)) be an Event of Default.

        "Defaulting Lender" means any Lender:

(a)

which has failed to make its participation in a Loan available or has notified the Agent or any Obligor or has indicated publicly that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders' participation);



(b)

which has otherwise rescinded or repudiated a Finance Document; or



(c)

with respect to which an Insolvency Event has occurred and is continuing,

4

unless, in the case of paragraph (a) above:

(i)

its failure to pay is caused by:



(A)

administrative or technical error; or



(B)

a Disruption Event; and

payment is made within three Business Days of its due date;

(ii)

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question; or



(iii)

the circumstances contemplated by Clause 7.1 (Illegality) apply in respect of that Lender and the Lender has given notice thereof to the Agent in accordance with such Clause.

        "Disposal" means a sale, transfer or other disposal by a member of the Group of any shares, undertaking or business to a person that is not a member of the Group (whether by a voluntary or involuntary single transaction or series of transactions) but excluding any sale, transfer or other disposal of shares in a member of the Group which (following such sale, transfer or other disposal) remains a member of the Group.

        "Disposal Proceeds" means the cash consideration received by any member of the Group (including any amount receivable in repayment of intercompany debt and, when received, any deferred consideration whether by way of adjustment to the purchase price or otherwise) for any Disposal after deducting:

(a)

any reasonable expenses incurred, and provisions for liability made, by any member of the Group with respect to that Disposal to persons who are not members of the Group; and



(b)

any Tax incurred and required to be paid by any member of the Group in connection with that Disposal (including, for the avoidance of doubt, in connection with the receipt of any deferred consideration) (as reasonably determined by that member of the Group, on the basis of known rates and taking account of any available credit, deduction or allowance).

        "Disruption Event" means either or both of:

(a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or



(b)

the occurrence of any other event which results in a disruption (including without limitation, disruption of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:



(i)

from performing its payment obligations under the Finance Documents; or



(ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

        "Employee Plan" means, at any time, an "employee pension benefit plan" as defined in Section 3(2) of ERISA subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA (other than a Multiemployer Plan), maintained or contributed to (or to which there is or was an obligation to contribute) by any Obligor or ERISA Affiliate.

5

        "ERISA" means, at any date, the United States Employee Retirement Income Security Act of 1974 (or any successor legislation thereto) and the regulations promulgated and rulings issued thereunder.

        "ERISA Affiliate" means each person (as defined in Section 3(9) of ERISA) that is a member of a Controlled Group of any Obligor.

        "Event of Default" means any event or circumstance specified as such in Clause 26 (Events of Default).

        "Exchange Act" means the Securities Exchange Act of 1934 of the United States, as amended from time to time, and any successor statute.

        "Excluded Disposal Proceeds" means:

(a)

any Disposal Proceeds which do not exceed US$ 10,000,000 (or its equivalent in any other currency or currencies) for any Disposal (whether by a single transaction or series of related transactions);



(b)

any other Disposal Proceeds greater than US$ 10,000,000 (or its equivalent in any other currency or currencies) for any Disposal (whether by a single transaction or series of related transactions) to the extent that, when aggregated with all such other Disposal Proceeds receivable by the Group in the same financial year, such Disposal Proceeds do not exceed US$ 200,000,000 (or its equivalent in any other currency or currencies); and



(c)

for any Disposal made during the nine months following the date of public announcement of the Acquisition (whether by a single transaction or series of related transactions) and provided that the rating for the long term unsecured and non-credit enhanced debt obligations of the Company would immediately after the relevant Disposal (and immediately after any adjustment to such rating made within 30 days of, and as a result of, the relevant Disposal) be BBB– or higher by Standard & Poor's Ratings Services and Baa3 or higher by Moody's Investors Service, any other Disposal Proceeds greater than US$ 10,000,000 for any Disposal (or its equivalent in any other currency or currencies) to the extent that, when aggregated with all such other Disposal Proceeds receivable by the Group for Disposals made during that period, such Disposal Proceeds do not exceed US$ 2,500,000,000 (or its equivalent in any other currency or currencies).

        "Existing Facilities Agreements" means:

(a)

the US$ 2,100,000,000 facilities agreement dated 12 December 2014 made between, among others, the Company and Barclays Bank PLC as facility agent;



(b)

the US$ 850,000,000 term facilities agreement dated 11 January 2015 made between, among others, the Company and Citibank International Limited as agent; and



(c)

the US$ 5,600,000,000 facilities agreement dated 2 November 2015 made between, among others, the Company and Deutsche Bank AG, London Branch as agent.

        "Existing Financial Indebtedness" means the existing Financial Indebtedness listed in Schedule 11 (Existing Financial Indebtedness).

        "Existing Loans" means the existing loans listed in Schedule 10 (Existing Loans).

        "Existing Security" means the existing Security listed in Schedule 9 (Existing Security).

        "Extended Facility A Commitments" has the meaning set out in Clause 10.1 (Extension in respect of Facility A).

        "Extended Facility A Loans" has the meaning set out in Clause 10.1 (Extension in respect of Facility A).

6

        "Extended Facility B Commitments" has the meaning set out in Clause 10.2 (Extension in respect of Facility B).

        "Extension Notice" has the meaning set out in Clause 10.3 (Extension Notice).

        "Facility" means Facility A or Facility B.

        "Facility A" means the term loan facility made available under this Agreement as described in Clause 2.1(A) (Grant of Facilities).

        "Facility A Commitment" means:

(a)

in relation to an Original Facility A Lender, the amount set opposite its name under the heading "Commitment (US$)" in Part I of Schedule 1 (The Original Lenders) and the amount of any other Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and



(b)

in relation to any other Facility A Lender, the amount of any Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

        "Facility A Lender" means:

(a)

an Original Facility A Lender; and



(b)

any other person that becomes a Facility A Lender after the date of this Agreement in accordance with Clause 2.2 (Increase) or Clause 27 (Changes to the Lenders),

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

        "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 Maturity Date" means the Original Facility A Maturity Date, subject to extension pursuant to Clause 10 (Extension option).

        "Facility B" means the revolving loan facility made available under this Agreement as described in Clause 2.1(B) (Grant of Facilities).

        "Facility B Commitment" means:

(a)

in relation to an Original Facility B Lender, the amount set opposite its name under the heading "Commitment (US$)" in Part II of Schedule 1 (The Original Lenders) and the amount of any other Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and



(b)

in relation to any other Facility B Lender, the amount of any Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

        "Facility B Lender" means:

(a)

an Original Facility B Lender; and



(b)

any other person that becomes a Facility B Lender after the date of this Agreement in accordance with Clause 2.2 (Increase) or Clause 27 (Changes to the Lenders),

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

7

        "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 Maturity Date" means the Original Facility B Maturity Date, subject to extension pursuant to Clause 10 (Extension option).

"Facility Office" means:

(a)

in relation to a Lender, the office identified as such opposite such Lender's name in Part I or Part II (as applicable) of Schedule 1 (The Original Lenders) or such other office as it may from time to time select;



(b)

in relation to a New Lender, the office notified by that New Lender to the Agent in writing on or before the date it becomes a Lender as the office through which it will perform its obligations under this Agreement (including as may be notified at the end of the Transfer Certificate to which it is party as a transferee), or such other office as it may from time to time select; and



(c)

in relation to an Increase Lender that at the time immediately prior to the relevant increase in accordance with Clause 2.2 (Increase) is not a Lender, the office notified by that Increase Lender to the Agent in writing on or before the date it becomes a Lender as the office through which it will perform its obligations under this Agreement (including as may be notified in the relevant Increase Confirmation from that Increase Lender), or such other office as it may from time to time select.

        "FATCA" means:

(a)

sections 1471 to 1474 of the Code or any associated regulations or other official guidance;



(b)

any treaty, law, regulation or other official guidance enacted in any jurisdiction other than the US, or relating to an intergovernmental agreement between the US and any jurisdiction other than the US, which (in either case) facilitates the implementation of paragraph (a) above; or



(c)

any agreement pursuant to the implementation of paragraphs (a) or (b) above with the IRS, the US government or any governmental or taxation authority in any jurisdiction other than the US.

        "FATCA Application Date" means:

(a)

in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;



(b)

in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or



(c)

in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

        "FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.

        "FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.

8

        "Federal Reserve Board" means the Board of Governors of the Federal Reserve System of the United States (or any successor thereto).

        "Fee Letter" means any letter or letters dated on or about the date of this Agreement between the Original Arrangers or any of their Affiliates and the Parent Company (or the Agent and the Parent Company) setting out any of the fees payable in connection with the Facilities.

        "Finance Document" means this Agreement, any Fee Letter, any Accession Letter, any Resignation Letter, the Syndication Letter, any Utilisation Request and any other document designated as such by the Agent and the Parent Company but excluding any hedging arrangements.

        "Finance Party" means the Agent, any Arranger or any Lender.

        "Financial Indebtedness" means any indebtedness for or in respect of:

(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 US GAAP, be treated as a finance or capital lease (but excluding the amount of any liability in respect of any lease or hire purchase contract which would not, in accordance with US GAAP as at the date of this Agreement, 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 seventh anniversary of the date of this Agreement other than redeemable shares issued by a Subsidiary of the Parent Company where such redeemable shares are acquired by another member of the Group as consideration for, or in connection with, an issue by a member of the Group of equity securities or, to the extent not so acquired, are redeemed within 30 days after the date of their issue;



(j)

any amount of any liability under an advance or deferred purchase agreement if one of the primary reasons behind the entry into such agreement is to raise finance (excluding, for the avoidance of doubt, milestone and deferred consideration payments in respect of acquisitions of shares or other assets which are the subject of any acquisition); and



(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.

        "Fraudulent Transfer Law" means any applicable US Bankruptcy Law or any applicable US state law, in each case concerning fraudulent transfer or conveyance.

9

        "Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to paragraph (A)(ii) of Clause 13.4 (Cost of funds).

        "Group" means the Parent Company and its Subsidiaries for the time being.

        "Guarantor" means the Original Guarantor and any Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 28 (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.

        "Impaired Agent" means the Agent at any time when:

(a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;



(b)

the Agent otherwise rescinds or repudiates a Finance Document;



(c)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of "Defaulting Lender"; or



(d)

an Insolvency Event has occurred and is continuing with respect to the Agent,

unless, in the case of paragraph (a) above:

(i)

its failure to pay is caused by:



(A)

administrative or technical error; or



(B)

a Disruption Event; and

payment is made within five Business Days of its due date; or

(ii)

the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

        "Increase Confirmation" means a confirmation substantially in the form set out in Schedule 14 (Form of Increase Confirmation).

        "Increase Lender" has the meaning given to that term in Clause 2.2 (Increase).

        "Information Memorandum" means the document (if any) prepared in relation to the Group and the Acquisition, approved by the Company and distributed by the Original Arrangers in connection with the Syndication.

        "Information Memorandum Date" means the date on which the Information Memorandum (if any) is approved by the Company for distribution.

        "Insolvency Event" means, in relation to a Finance Party:

(a)

the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of that Finance Party or all or substantially all of that Finance Party's assets;



(b)

that Finance Party suspends making payments on all or substantially all of its debts or publicly announces an intention to do so; or



(c)

any analogous procedure or step is taken in any jurisdiction with respect to that Finance Party.

        "Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 12 (Interest Periods) and in relation to an Unpaid Sum, each period determined in accordance with Clause 11.3 (Default interest).

10

        "Interpolated Screen Rate" means, in relation to any Loan, the rate rounded to the same number of decimal places as the two relevant Screen Rates which results from interpolating on a linear basis between:

(a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and



(b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of the Specified Time on the Quotation Day for dollars.

        "Ireland" means the Republic of Ireland.

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

        "Lender" means a Facility A Lender or a Facility B Lender.

        "Leverage Ratio" has the meaning given to it in Clause 23.2(A) (Financial condition).

        "LIBOR" means, in relation to any Loan:

(a)

the applicable Screen Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or



(b)

as otherwise determined pursuant to Clause 13.1 (Unavailability of Screen Rate),

and, if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.

        "Loan" means a Facility A Loan or a Facility B Loan.

        "Loan Proceeds" means any Financial Indebtedness raised in the international or domestic market by way of a syndicated or bilateral bank or other loan financing after the date of this Agreement, in each case, of any member of the Group, but excluding:

(a)

any Financial Indebtedness arising out of a utilisation of the Facilities;



(b)

any Financial Indebtedness arising out of a utilisation under an Existing Facilities Agreement or any replacement or refinancing thereof (to the extent that, in each case, the aggregate amount of such Financial Indebtedness does not exceed the amount of Financial Indebtedness that could be incurred under an Existing Facilities Agreement on the date of this Agreement (assuming no increase in the "Total Commitments" as defined in the applicable Existing Facilities Agreement));



(c)

any money market lines and overdraft facilities with a maturity of six Months or less;



(d)

any Financial Indebtedness to the extent raised by way of a syndicated or bilateral bank or other loan financing for the purpose of funding the acquisition by any member of the Group of any company, shares, undertaking or business (and related costs, liabilities and expenses), other than any acquisition of the Target;



(e)

any Financial Indebtedness to the extent raised by way of a syndicated or bilateral bank or other loan financing in connection with enabling the Group's, or a member of the Group's, auditors to sign off on any working capital report relating to the Acquisition (and funding related costs, liabilities and expenses);



(f)

any Financial Indebtedness to the extent owed by one member of the Group to another member of the Group;



(g)

any Financial Indebtedness falling within paragraphs (b), (d), (e), (g), (h), (i) or (k) of the definition of Financial Indebtedness; and

11

(h)

any other Financial Indebtedness referred to above (and not falling within any of paragraphs (a) to (f) above), the principal amount of which in full under the terms of the instrument (when aggregated with the principal amount of all other such Financial Indebtedness referred to above (and not falling within any of paragraphs (a) to (f) above)) does not exceed US$ 100,000,000 (or the equivalent in other currencies),

but, in each case, after deducting any reasonable fees, costs, expenses and Taxes which are incurred by members of the Group with respect to the raising of that Financial Indebtedness to persons who are not members of the Group.

"Majority Lenders" means, subject to Clause 38.4 (Disenfranchisement of Defaulting Lenders):

(a)

if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate not less than 66²/3 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated not less than 66²/3 per cent. 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 66²/3 per cent. of all the Loans then outstanding.

        "Margin" means in relation to any Loan, 1.25 per cent. per annum, provided that such Margin will increase by:

(a)

0.25 per cent. per annum on the date falling six Months after the date of this Agreement, and on each subsequent date falling at three Month intervals thereafter until (but excluding) the date falling fifteen Months after the date of this Agreement; and



(b)

0.50 per cent. per annum on the date falling fifteen Months after the date of this Agreement, and on each subsequent date falling at three Month intervals thereafter.

        "Margin Stock" means "margin stock" as defined in Regulation U.

        "Material Adverse Effect" means a:

(a)

material adverse change in the business, operations, assets or financial condition of the Group taken as a whole which is likely to have a material adverse effect on the ability of the Obligors taken as a whole or the Parent Company to perform their respective payment obligations under the Finance Documents; or



(b)

material adverse effect on the validity or enforceability of the Finance Documents or the rights or remedies of any Finance Party under the Finance Documents.

        "Material Company" means, at any time:

(a)

an Obligor; or



(b)

a Subsidiary of the Parent Company which has EBITDA (as defined in Clause 23.1 (Financial definitions) but calculated as though it applied to it) representing 10 per cent. or more of the EBITDA of the Group.

        Compliance with such conditions shall be determined by reference to the most recent Compliance Certificate supplied by the Parent Company and/or the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest audited consolidated financial statements of the Group.

        A report by the auditors of the Parent Company that a Subsidiary is or is not a Material Company (determined in accordance with the preceding paragraph) shall, in the absence of manifest error, be conclusive and binding on all Parties.

12

        "Maturity Date" means:

(a)

in respect of Facility A, the Facility A Maturity Date; or



(b)

in respect of Facility B, the Facility B Maturity Date.

        "Merger" means a merger pursuant to which the Merger Subsidiary will be merged with and into the Target whereby the Target will be the surviving corporation pursuant to Section 251 of the General Corporation Law of the State of Delaware, and pursuant to which all outstanding Target Shares (other than those owned by the Target or in respect of which appraisal rights are validly exercised and perfected under the General Corporation Law of the State of Delaware) will be converted into the right to receive cash and American depository shares or ordinary shares of the Company.

        "Merger Subsidiary" means Beartracks, Inc., a Delaware corporation and a member of the Group.

        "Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

(a)

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one or, if there is not, on the immediately preceding Business Day;



(b)

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and



(c)

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

        The above rules will apply only to the last Month of any period.

        "Multiemployer Plan" means, at any time, a multiemployer plan (as defined in Section 4001(a)(3) of ERISA), subject to the provisions of Title IV of ERISA, then or at any time during the previous five years maintained for, or contributed to (or to which there is or was an obligation to contribute) by any Obligor or ERISA Affiliate.

        "New Lender" has the meaning given to that term in Clause 27 (Changes to the Lenders).

        "Newco Scheme" means a scheme of arrangement or analogous proceeding (each, a "Scheme", and including any modification, addition or condition thereto approved by the relevant court) which effects, in accordance with Clause 24.9 (Top Newco), the interposition of one or more limited liability companies (each, a "Newco") between:

(a)

in relation to the first Scheme following the date of this Agreement, the shareholders immediately prior to that Scheme of the Company and the Company; or



(b)

in relation to any subsequent Scheme, the Newco interposed by the previous Scheme and its shareholders (provided that, where more than one Newco was interposed as part of the previous Scheme, only the top such Newco shall constitute Newco for these purposes).

        "Newco Scheme Date" means the date of completion of any Newco Scheme.

        "Obligor" means a Borrower or a Guarantor.

        "Original Facility A Maturity Date" means the date falling 12 Months after the date of this Agreement.

        "Original Facility B Maturity Date" means the date falling 12 Months after the date of this Agreement.

13

        "Original Financial Statements" means, in relation to the Parent Company, the audited consolidated financial statements of the Group for the financial year ended 31 December 2014.

        "Original Maturity Date" means the Original Facility A Maturity Date or the Original Facility B Maturity Date.

        "Parent Company" means the Company or, after completion of any Newco Scheme in accordance with the terms of this Agreement, the most recently interposed Top Newco.

        "Participating Member State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

        "Party" means a party to this Agreement.

        "Permitted Securitisation" means any arrangements forming part of a transaction involving the securitisation or other financing of assets or cash flows (or both) relating to royalty income up to an aggregate funding amount equivalent for all such arrangements of US$ 500,000,000 over the life of the Facilities.

        "Qualifying Lender" has the meaning given to it in Clause 15 (Tax gross-up and indemnities).

        "Quotation Day" means, in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period, unless market practice differs in the Relevant Interbank Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).

        "Reference Bank Quotation" means any quotation supplied to the Agent by a Reference Bank.

        "Reference Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks:

(a)

(other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in US dollars and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or



(b)

if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.

        "Reference Banks" means the principal London offices of any banks as may be appointed by the Agent in consultation with the Parent Company.

        "Register" has the meaning given to that term in Clause 29.21 (The Register).

        "Regulation U" or "Regulation X" means, respectively, Regulation U or X of the Federal Reserve Board as now and from time to time in effect from the date of this Agreement and all official rulings and interpretations thereof and thereunder.

        "Relevant Interbank Market" means the London interbank market.

        "Relevant Period" has the meaning given to it in Clause 23.1 (Financial definitions).

        "Repeating Representations" means each of the representations set out in Clauses 21.2 (Status) to 21.7 (Governing law and enforcement), Clause 21.10 (No default), Clause 21.13 (Pari passu ranking),

14

Clause 21.14 (Anti-corruption law), Clause 21.15 (Sanctions) and Clause 21.17 (Federal Reserve regulations).

        "Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

        "Resignation Letter" means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).

        "Rollover Loan" means one or more Facility B Loans:

(a)

made or to be made on the same day that one or more maturing Facility B Loans is or are due to be repaid;



(b)

the aggregate amount of which is equal to the amount of the maturing Facility B Loan(s); and



(c)

made or to be made to the Borrower for the purpose of refinancing the maturing Facility B Loan(s).

        "Screen Rate" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Parent Company.

        "SEC" means the United States Securities and Exchange Commission or any successor thereto.

        "Security" means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

        "Selection Notice" means a notice substantially in the form set out in Part II of Schedule 3 (Requests).

        "SGF" means Shire Global Finance, a private unlimited company incorporated in England with registered number 05418960.

        "Specified Time" means a day or time determined in accordance with Schedule 13 (Timetables).

        "Subsidiary" means a subsidiary within the meaning of section 1159 of the Companies Act 2006.

        "Syndication" means the primary syndication of the Facilities.

        "Syndication Letter" means the letter dated on or around the date of this Agreement between the Original Arrangers, the Agent and the Company.

        "Target" means Baxalta, Inc., a Delaware corporation.

        "Target Notes" means the Target's:

(a)

US$ 375,000,000 of floating rate senior notes due 2018;



(b)

US$ 375,000,000 of 2.000% senior notes due 2018;



(c)

US$ 1,000,000,000 of 2.875% senior notes due 2020;



(d)

US$ 500,000,000 of 3.600% senior notes due 2022;



(e)

US$ 1,750,000,000 of 4.000% senior notes due 2025; and



(f)

US$ 1,000,000,000 of 5.250% senior notes due 2045,

15

issued pursuant to an indenture dated as of 23 June 2015 between the Target as issuer and The Bank of New York Mellon Trust Company, N.A. as trustee (as supplemented by a first supplemental indenture dated as of 23 June 2015) and any other notes issued by the Target.

        "Target Shares" means the shares of common stock, par value $0.01 per share, of the Target.

        "Tax" means any tax, levy, impost, duty or other charge or withholding 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).

        "TCA" means the Taxes Consolidation Act 1997 of Ireland (as amended).

        "Top Newco" means the top Newco most recently interposed by any Newco Scheme from time to time.

        "Total Commitments" means the aggregate of the Total Facility A Commitments and the Total Facility B Commitments, being US$ 18,000,000,000 as at the date of this Agreement.

        "Total Facility A Commitments" means the aggregate of the Facility A Commitments, being US$ 13,000,000,000 as at the date of this Agreement.

        "Total Facility B Commitments" means the aggregate of the Facility B Commitments, being US$ 5,000,000,000 as at the date of this Agreement.

        "Transfer Certificate" means a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate) or any other form agreed between the Agent and the Parent Company.

        "Transfer Date" means, in relation to an assignment or a transfer, the later of:

(a)

the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and



(b)

the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

        "UK Borrower" means a Borrower which is incorporated in the United Kingdom or operating in the United Kingdom through a permanent establishment with which any payment under this Agreement is connected.

        "Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.

        "US" and "United States" means the United States of America, its territories, possessions and other areas subject to the jurisdiction of the United States of America.

        "USA Patriot Act" means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 of the United States, as amended.

        "US Bankruptcy Law" means the United States Bankruptcy Code of 1978 (Title 11 of the United States Code) or any other United States federal or state bankruptcy, insolvency or similar law.

        "US Borrower" means a Borrower whose jurisdiction of creation or organisation is a state of the United States of America or the District of Columbia or some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

        "US GAAP" means generally accepted accounting principles in the United States of America.

16

        "US Guarantor" means a Guarantor whose jurisdiction of creation or organisation is a state of the United States of America or the District of Columbia or some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

        "US Obligor" means a US Borrower or a US Guarantor.

        "Utilisation" means a utilisation of a Facility.

        "Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made.

        "Utilisation Request" means a notice substantially in the form set out in Part I of Schedule 3 (Requests).

        "VAT" means, in respect of the United Kingdom, value added tax as provided for in the Value Added Tax Act 1994 and any regulations promulgated thereunder; in respect of Ireland, value added tax as provided for in the Value-Added Tax Consolidation Act 2010 and any regulations promulgated thereunder; and any other Tax of a similar nature whether imposed in the United Kingdom or Ireland in substitution for, or levied in addition to, such Taxes, or imposed elsewhere.

1.2   Construction

(A)

Unless a contrary indication appears any reference in this Agreement to:



(i)

the "Agent", an "Arranger", any "Finance Party", any "Lender", any "Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;



(ii)

"assets" includes present and future properties, revenues and rights of every description;



(iii)

a "company" shall be construed so as to include any corporation or other body corporate, wherever and however incorporated or established;



(iv)

a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, restated, supplemented, replaced, superseded or novated;



(v)

"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;



(vi)

a "person" includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) of two or more of the foregoing;



(vii)

a "regulation" includes any regulation, rule, official directive or guideline (whether or not having the force of law but if not having the force of law being of a type which any person to which it applies is accustomed to comply) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other similar authority or organisation;



(viii)

a provision of law or regulation (including an accounting standard) is a reference to that provision as amended or re-enacted; and



(ix)

a time of day is a reference to London time.



(B)

The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

17

(C)

Section, Clause and Schedule headings are for ease of reference only.



(D)

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.



(E)

A Default or an Event of Default is "continuing" if it has not been remedied or waived.

1.3   Currency symbols and definitions

        "$", "dollars", "US Dollars" and "US$" denote the lawful currency for the time being of the United States of America.

        "EUR" and "euro" means the single currency unit of the Participating Member States.

        "£" and "sterling" denote the lawful currency for the time being of the United Kingdom.

1.4   Third party rights

(A)

Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.



(B)

Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

1.5   Irish terms

(A)

an "administration" includes an examinership within the meaning of the Companies Act 2014 of Ireland (as amended); and



(B)

an "administrator" includes an examiner within the meaning of the Companies Act 2014 of Ireland (as amended).

18

SECTION 2
FACILITIES

2.     THE FACILITIES

2.1   Grant of Facilities

        Subject to the terms of this Agreement:

(A)

the Facility A Lenders make available to the Borrowers an extendable US$ term loan facility in an aggregate amount equal to the Total Facility A Commitments; and



(B)

the Facility B Lenders make available to the Borrowers an extendable US$ revolving loan facility in an aggregate amount equal to the Total Facility B Commitments.

2.2   Increase

(A)

The Parent Company may, by giving prior notice to the Agent by no later than 30 days after the effective date of a cancellation of:



(i)

the Available Commitments of a Defaulting Lender in accordance with Clause 7.4 (Right of repayment and cancellation in relation to a single Lender or Defaulting Lender); or



(ii)

the Commitments of a Lender in accordance with Clause 7.1 (Illegality) or Clause 7.4 (Right of repayment and cancellation in relation to a single Lender or Defaulting Lender),

request that the Commitments relating to the relevant Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate amount in dollars of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled, as follows:

(a)

the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities which (in each case) shall not be a member of the Group (each an "Increase Lender") selected by the Parent Company and each of which confirms in writing (whether in the Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;



(b)

each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;



(c)

each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;



(d)

the Commitments of the other Lenders shall continue in full force and effect; and



(e)

any such increase in the Commitments relating to a Facility shall take effect on the date specified by the Parent Company in the notice referred to above or any later date on which the conditions set out in paragraph (B) below are satisfied.

19

(B)

An increase in the Commitments relating to a Facility will be effective only on:



(i)

the execution by the Agent of an Increase Confirmation from the relevant Increase Lender; and



(ii)

in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Agent shall promptly notify to the Parent Company and the Increase Lender.



(C)

Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.



(D)

The Parent Company shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee of US$ 3,000 and the Parent Company shall promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.



(E)

Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:



(i)

an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase;



(ii)

the "New Lender" were references to that "Increase Lender"; and



(iii)

a "re-transfer" and "re-assignment" were references to, respectively, a "transfer" and "assignment".

2.3   Finance Parties' rights and obligations

(A)

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.



(B)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (C) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.



(C)

A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

20

3.     PURPOSE

3.1   Purpose

(A)

Each Borrower shall apply all amounts borrowed by it under Facility A towards financing (either directly or indirectly, including by way of on-lending by the relevant Borrower to other members of the Group) the purchase price payable in respect of the Acquisition and the payment of related Acquisition Costs and transaction costs (including related integration and reorganisation costs).



(B)

Each Borrower shall apply all amounts borrowed by it under Facility B towards any of:



(i)

redeeming (either directly or indirectly, including by way of on-lending by the relevant Borrower to other members of the Group) all or part of the Target Notes (and towards financing any related costs); and/or



(ii)

refinancing (by way of a Rollover Loan) any Facility B Loan previously utilised.

3.2   Monitoring

        No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

4.     CONDITIONS OF UTILISATION

4.1   Initial conditions precedent

(A)

No Borrower (nor the Parent Company) may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part I(A) of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent (acting reasonably). The Agent shall notify the Parent Company and the Lenders promptly upon being so satisfied.



(B)

The Lenders will be obliged to comply with Clause 5.4 (Lenders' participation) in relation to any Utilisation only if, on or before 3.00 p.m. New York time on the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Part I(B) of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent (acting reasonably). The Agent shall notify the Parent Company and the Lenders promptly upon being satisfied it has received such documents and other evidence.



(C)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (A) or paragraph (B) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

4.2   Further conditions precedent

        The Lenders will be obliged to comply with Clause 5.4 (Lenders' participation) in relation to a Loan only if, on the date of the Utilisation Request and on the proposed Utilisation Date:

(A)

in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or will result from the proposed Loan; and



(B)

the Repeating Representations to be made by each Obligor are true in all material respects.

4.3   Maximum number of Utilisation Requests

        A Borrower may not deliver a Utilisation Request if, as a result of the proposed Utilisation, more than 15 Loans would be outstanding, unless otherwise agreed by the Parent Company and the Agent.

21

SECTION 3
UTILISATION

5.     UTILISATION

5.1   Delivery of a Utilisation Request

        A Borrower may utilise a Facility by delivery by it (or the Parent Company on behalf of the Borrower) to the Agent of a duly completed Utilisation Request by not later than the Specified Time.

5.2   Completion of a Utilisation Request

(A)

Each Utilisation Request delivered to the Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request) is irrevocable and will not be regarded as having been duly completed unless:



(i)

it identifies the Borrower and the Facility to be utilised;



(ii)

the proposed Utilisation Date is a Business Day within the Availability Period;



(iii)

the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and



(iv)

the proposed Interest Period complies with Clause 12 (Interest Periods).



(B)

Only one Loan may be requested in each Utilisation Request delivered to the Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request).

5.3   Currency and amount

(A)

The currency specified in a Utilisation Request delivered to the Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request) for the purpose of drawing a Loan must be dollars.



(B)

The amount of the proposed Loan shall be an amount which is not more than the Available Facility and must be a minimum of US$ 10,000,000 or, if less, the Available Facility.

5.4   Lenders' participation

(A)

If the conditions set out in this Agreement have been met and subject to Clause 6.2 (Repayment of Facility B Loans), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.



(B)

The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.



(C)

The Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan promptly following receipt of the relevant Utilisation Request.

5.5   Cancellation of Commitments

        Any Facility A Commitments and Facility B Commitments which, at that time, are unutilised shall be immediately and automatically cancelled at the end of the applicable Availability Period (as extended in accordance with the terms of that definition).

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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION

6.     REPAYMENT

6.1   Repayment of Facility A Loans

        Subject to Clause 10 (Extension Option), each Borrower shall repay all outstanding Facility A Loans borrowed by it in full on the Facility A Maturity Date.

6.2   Repayment of Facility B Loans

(A)

Subject to paragraphs (B) to (F) below, each Borrower which has drawn a Facility B Loan shall repay that Facility B Loan on the last day of its Interest Period.



(B)

Without prejudice to each Borrower's obligation under paragraph (A) above, if one or more Facility B Loans are to be made available to a Borrower:



(i)

on the same day that a maturing Facility B Loan is, or maturing Facility B Loans are, due to be repaid by that Borrower;



(ii)

in whole or in part for the purpose of refinancing the maturing Facility B Loan or maturing Facility B Loans,

the aggregate amount of the new Facility B Loans shall, unless the Parent Company notified the Agent to the contrary in its Utilisation Request, be treated as if applied in or towards repayment of the maturing Facility B Loan or maturing Facility B Loans, so that:

(iii)

if the aggregate amount of the maturing Facility B Loan or maturing Facility B Loans exceeds the aggregate amount of the new Facility B Loans:



(a)

the relevant Borrower will only be required to pay an amount in cash in accordance with Clause 32.1 (Payments to the Agent) equal to that excess; and



(b)

each Lender's participation (if any) in the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation (if any) in the maturing Facility B Loan or maturing Facility B Loans and that Lender will not be required to make its participation in the new Facility B Loans available in cash in accordance with Clause 32.1 (Payments to the Agent); and



(iv)

if the aggregate amount of the maturing Facility B Loan or maturing Facility B Loans is equal to or less than the aggregate amount of the new Facility B Loans:



(a)

the relevant Borrower will not be required to make any payment in cash in accordance with Clause 32.1 (Payments to the Agent); and



(b)

each Lender will be required to make its participation in the new Facility B Loans available in accordance with Clause 32.1 (Payments to the Agent) only to the extent that its participation (if any) in the new Facility B Loans exceeds that Lender's participation (if any) in the maturing Facility B Loan and the remainder of that Lender's participation in the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Facility B Loan.



(C)

Subject to Clause 7.4 (Right of repayment and cancellation in relation to a single Lender or Defaulting Lender) at any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Facility B Loans then outstanding will

23

be automatically extended to the Facility B Maturity Date (as applicable, and as extended pursuant to Clause 10 (Extension Option)), and will be treated as separate Facility B Loans (each, a "Separate Loan").

(D)

A Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving not less than five Business Days' (or such shorter period as the relevant Defaulting Lender may agree) prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (D) to the Defaulting Lender concerned as soon as practicable on receipt.



(E)

Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Agent for the account of that Defaulting Lender in accordance with Clause 32.1 (Payments to the Agent) on the last day of each Interest Period of that Loan.



(F)

The terms of this Agreement relating to Facility B Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (C) to (E) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

7.     ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

7.1   Illegality

        If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan, that Lender shall promptly notify the Agent upon becoming aware of that event and shall also notify the Agent that it requires either or both of the following:

(A)

upon the Agent notifying the Parent Company, the Available Commitments of that Lender will be immediately cancelled; and/or



(B)

each Borrower shall repay that Lender's participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Parent Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.

7.2   Voluntary cancellation

        The Parent Company may, if it gives the Agent not less than three Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (but, if in part, being a minimum amount of US$ 10,000,000) of an Available Facility. Any cancellation under this Clause 7.2 (Voluntary cancellation) shall reduce the Commitments of the Lenders rateably under the relevant Facility.

7.3   Voluntary prepayment of Loans

        The Borrower to which a Loan has been made may, if it gives the Agent not less than three Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of US$ 10,000,000).

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7.4   Right of repayment and cancellation in relation to a single Lender or Defaulting Lender

(A)

If:



(i)

any sum payable to any Lender by an Obligor is required to be increased under paragraph (D) of Clause 15.2 (Tax gross-up);



(ii)

the Parent Company receives a demand from the Agent under Clause 15.3 (Tax indemnity) or Clause 16.1 (Increased Costs); or



(iii)

a Lender becomes a Defaulting Lender,

the Parent Company may, while the circumstances under paragraphs (i) or (iii) above or the circumstance giving rise to the demand or notice under paragraph (ii) above continues, give the Agent notice of cancellation of the Commitments of that Lender and its intention to procure the repayment of that Lender's participation in the Loans.

(B)

On receipt of a notice from the Parent Company referred to in paragraph (A) above, the Commitments of that Lender shall immediately be reduced to zero.



(C)

On the last day of each Interest Period which ends after the Parent Company has given notice under paragraph (A) above (or, if earlier, the date specified by the Parent Company in that notice), the Borrower to which a Loan is outstanding shall repay that Lender's participation in that Loan.

7.5   Mandatory cancellation

(A)

Subject to paragraph (B) below, if the Parent Company determines (acting reasonably) that it is certain that the Acquisition will not complete during the Availability Period (as might be extended in accordance with the terms of that definition) for a Facility, it will promptly notify the Agent. On receipt by the Agent of such notice, the Commitments of each Lender shall immediately be cancelled in full.



(B)

If the Parent Company determines (acting reasonably) that the Acquisition would complete during the Availability Period if the Availability Period for the Facilities were extended beyond the date falling 15 Months after the date of this Agreement, it may promptly notify the Agent and request the consent of the Lenders to such extension in accordance with Clause 38 (Amendments and waivers). For the avoidance of doubt, no such extension shall be made unless it is consented to by each Lender and no Lender is obliged to give such consent (and the decision whether to do so shall be in each Lender's sole discretion).

8.     MANDATORY PREPAYMENT

8.1   Mandatory prepayment on change of control

(A)

If any person or group of persons acting in concert gains control of the Parent Company (other than pursuant to a Newco Scheme):



(i)

the Parent Company shall promptly notify the Agent upon becoming aware of that event;



(ii)

a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan); and



(iii)

if a Lender so requires, the Agent shall, by not less than 30 days' notice to the Parent Company, cancel that Lender's Commitments and, subject to paragraph (D) below, declare all outstanding Loans due to such Lender, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon that Lender's Commitments will be cancelled and all such outstanding amounts will become immediately due and payable.

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(B)

For the purpose of paragraph (A) above "control" means:



(i)

the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to cast, or control the casting of, more than one-half of the maximum number of votes that may be cast at a general meeting of the Parent Company; or



(ii)

the holding of more than one-half of the issued share capital of the Parent Company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).



(C)

For the purpose of paragraph (A) above "acting in concert" means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares in the Parent Company, to obtain or consolidate control of the Parent Company.



(D)

If a date for prepayment of a Loan pursuant to Clause 8.1(A)(iii) falls otherwise than on the last day of an Interest Period, such prepayment may be made on the last day of that Loan's then current Interest Period (unless the relevant Lender instead requires prepayment upon expiry of the notice to the Parent Company pursuant to Clause 8.1(A)(iii) (or such longer period as that Lender and the Parent Company may agree), provided that in such case no Break Costs shall be payable in relation thereto).

8.2   Mandatory prepayment and cancellation out of certain proceeds

(A)

Except as provided in paragraph (B) below, the Parent Company shall ensure that all Capital Markets Proceeds, Loan Proceeds and Disposal Proceeds (other than any Excluded Disposal Proceeds) are applied in cancellation of the Available Commitments under the Facilities and (if applicable) prepayment of the Loans at the times and in the order of application contemplated by paragraphs (C) and (D) below.



(B)

No cancellation or prepayment will be required pursuant to paragraph (A) of this Clause 8.2 to the extent that the relevant Capital Markets Proceeds, Loan Proceeds or Disposal Proceeds are also required to be applied in prepayment or cancellation in accordance with any mandatory prepayment and cancellation obligations under an Existing Facilities Agreement.



(C)

Any amount to be applied in cancellation and (if applicable) prepayment pursuant to paragraph (A) above shall be applied in the following order:



(i)

first, in prepayment of Facility A Loans and Facility B Loans on a pro rata basis until all the Loans have been prepaid in full;



(ii)

secondly, towards the cancellation of the Available Commitments under Facility A until all such Available Commitments have been reduced to zero (and, for the avoidance of doubt, the Available Commitments of the Facility A Lenders will be cancelled rateably); and



(iii)

thirdly, towards the cancellation of the Available Commitments under Facility B until all such Available Commitments have been reduced to zero (and, for the avoidance of doubt, the Available Commitments of the Facility B Lenders will be cancelled rateably).

The Parent Company shall be entitled to select which Loans under the applicable Facility shall be prepaid under paragraph (i) above.

(D)

Any prepayment of a Loan pursuant to paragraph (C) above shall be made no later than the date which is the earlier of:



(i)

one Month after the Trigger Date; and

26

(ii)

the last day of the first Interest Period relating to the Loan being prepaid to end at least three Business Days after the Trigger Date,

provided that if, before that date, the Agent exercises any of its rights under paragraph (i) or (ii) of Clause 26.14(A) (Acceleration), or the Commitments of a Lender are cancelled under Clause 8.1 above, that amount shall be applied on the date of acceleration or, as the case may be, cancellation.

(E)

The Parent Company shall, within three Business Days of the Trigger Date, notify the Agent of a cancellation of Available Commitments or a requirement to prepay Loans pursuant to paragraph (C) above.



(F)

For the purposes of this Clause 8.2 (Mandatory prepayment and cancellation out of certain proceeds), the "Trigger Date" means the date of receipt of the relevant Capital Markets Proceeds, Loan Proceeds or Disposal Proceeds by the applicable member of the Group.

8.3   Mandatory prepayment—Acquisition CP Satisfaction

        If Acquisition CP Satisfaction has not occurred by 5.00 p.m. on the last day of the applicable Availability Period (as extended in accordance with the terms of that definition):

(A)

all outstanding Loans, together with accrued interest and all other amounts accrued under the Finance Documents, shall be repaid within three Business Days after the last day of the Availability Period; and



(B)

the Available Commitments of each Lender shall be cancelled in full.

9.     RESTRICTIONS

9.1   Notices of cancellation and prepayment

        Any notice of cancellation or prepayment given by any Party under Clause 7 (Illegality, voluntary prepayment and cancellation) or Clause 8 (Mandatory prepayment) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

9.2   Interest and other amounts

        Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

9.3   No reborrowing of Loans

        No Borrower may reborrow any part of a Loan which is prepaid, provided that, unless a contrary indication appears in this Agreement, any part of a Facility B Loan which is repaid may be reborrowed in accordance with the terms of this Agreement

9.4   Prepayment in accordance with Agreement

        The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

9.5   No reinstatement of Commitments

        For the avoidance of doubt, subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

27

9.6   Agent's receipt of notices

        If the Agent receives a notice under Clause 7 (Illegality, voluntary prepayment and cancellation) or Clause 8 (Mandatory prepayment), it shall promptly forward a copy of that notice to either the Parent Company or the affected Lender, as appropriate.

9.7   Effect of repayment or prepayment on Commitments

        If all or part of any Lender's participation in a Loan under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 2.2 (Increase)), an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

10.   EXTENSION OPTION

10.1 Extension in respect of Facility A

(A)

Subject to Clause 10.3 (Extension Notice), the Parent Company shall be entitled to extend the Facility A Maturity Date in respect of:



(i)

all or any part of the Facility A Loans outstanding on the Original Facility A Maturity Date for an additional period of 12 Months from the Original Facility A Maturity Date (the Facility A Loans so extended being the "Extended Facility A Loans"); and/or



(ii)

all or any part of the Facility A Commitments which are unutilised immediately prior to the end of the Availability Period on the Original Facility A Maturity Date for an additional period of 12 Months from the Original Facility A Maturity Date (provided that, for the avoidance of doubt and notwithstanding any such extension, such Facility A Commitments may only be utilised up to the end of the Availability Period of Facility A (as extended in accordance with the definition thereof or otherwise with the consent of all the Lenders)) (the Facility A Commitments so extended being the "Extended Facility A Commitments").



(B)

Any part of any Facility A Loan outstanding on the Original Facility A Maturity Date which the Parent Company has not requested to be extended pursuant to paragraph (A) above shall be repayable on the Original Facility A Maturity Date in accordance with Clause 6 (Repayment).

10.2 Extension in respect of Facility B

(A)

Subject to Clause 10.3 (Extension Notice), the Parent Company shall be entitled to extend the Facility B Maturity Date in respect of all or any part of the Facility B Commitments (which are utilised or unutilised) immediately prior to the end of the Availability Period on the Original Maturity Date for an additional period of 12 Months from the Original Maturity Date (provided that, for the avoidance of doubt and notwithstanding any such extension, such Facility B Commitments may only be utilised up to the end of the Availability Period of Facility B (as extended in accordance with the definition thereof or otherwise with the consent of all the Lenders)) (the Facility B Commitments so extended being the "Extended Facility B Commitments").



(B)

Any Facility B Commitments which are utilised on the Original Facility B Maturity Date and which the Parent Company has not requested to be extended pursuant to paragraph (A) above shall be repayable on the Original Facility B Maturity Date in accordance with Clause 6 (Repayment) and shall not be able to be re-drawn.

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10.3 Extension Notice

        The right of the Parent Company to extend the Facility A Maturity Date pursuant to Clause 10.1 (Extension in respect of Facility A) and the right of the Parent Company to extend the Facility B Maturity Date pursuant to Clause 10.2 (Extension in respect of Facility B) may each be exercised no more than once, in each case by the Parent Company giving notice to the Agent (an "Extension Notice") not more than 60 or less than 15 days before the Original Facility A Maturity Date or Original Facility B Maturity Date, as applicable. Such notice shall be given in writing, shall be unconditional and binding on the Parent Company and shall:

(A)

specify which Facility or Facilities the Extension Notice relates to; and



(B)

if applicable, specify the aggregate amount or proportion of the Facility A Loans which the Parent Company wishes to extend; and/or



(C)

if applicable, specify the aggregate amount or proportion of the Facility A Commitments and/or Facility B Commitments which the Parent Company wishes to extend.

10.4 Notification of Extension Notice

        The Agent shall forward a copy of each Extension Notice to the relevant Lenders as soon as practicable after receipt of it provided that failure of the Agent to do so shall not affect the Parent Company's right to effect any extension in accordance with this Clause 10.

10.5 Facility A Maturity Date and Facility B Maturity Date

        Following delivery of an Extension Notice pursuant to Clause 10.3 (Extension Notice) above:

(A)

the Facility A Maturity Date of any Extended Facility A Loans and Extended Facility A Commitments shall be the date falling 12 Months after the Original Facility A Maturity Date and references to "Facility A Maturity Date" shall be construed accordingly, subject to:



(i)

no Event of Default having occurred or continuing on the Original Facility A Maturity Date; and



(ii)

the Repeating Representations to be made by each Obligor being true in all material respects on the Original Facility A Maturity Date; and



(B)

the Facility B Maturity Date of any Extended Facility B Commitments shall be the date falling 12 Months after the Original Facility B Maturity Date and references to "Facility B Maturity Date" shall be construed accordingly, subject to:



(i)

no Event of Default having occurred or continuing on the Original Facility B Maturity Date; and



(ii)

the Repeating Representations to be made by each Obligor being true in all material respects on the Original Facility B Maturity Date.

29

SECTION 5
COSTS OF UTILISATION

11.   INTEREST

11.1 Calculation of interest

        The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

(A)

Margin; and



(B)

LIBOR.

11.2 Payment of interest

        The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six Monthly intervals after the first day of the Interest Period).

11.3 Default interest

(A)

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (B) below, is one per cent. higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 11.3 (Default interest) shall be immediately payable by the Obligor on demand by the Agent.



(B)

If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:



(i)

the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and



(ii)

the rate of interest applying to the overdue amount during that first Interest Period shall be one per cent. higher than the rate which would have applied if the overdue amount had not become due.



(C)

Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

11.4 Notification of rates of interest

(A)

The Agent shall promptly notify the relevant Lenders, the relevant Borrower and the Parent Company of the determination of a rate of interest under this Agreement.



(B)

The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

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12.   INTEREST PERIODS

12.1 Selection of Interest Periods

(A)

A Borrower (or the Parent Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (in the case of a Facility A Loan, if that Facility A Loan has already been borrowed) in a Selection Notice.



(B)

Each Selection Notice for a Facility A Loan is irrevocable and must be delivered to the Agent by the relevant Borrower (or the Parent Company on behalf of that Borrower) by not later than the Specified Time.



(C)

If a Borrower (or the Parent Company on behalf of that Borrower) fails to deliver a Selection Notice to the Agent in accordance with paragraph (B) above, the relevant Interest Period will be one Month.



(D)

Subject to this Clause 12 (Interest Periods), a Borrower (or the Parent Company on its behalf) may select an Interest Period of one week, one, two, three or six Months or any other period agreed between the Parent Company and the Agent (acting on the instructions of all the Lenders).



(E)

Prior to the close of Syndication, Interest Periods shall be one Month or one week or such shorter period as agreed between the Parent Company and the Agent (acting on the instructions of all the Lenders).



(F)

An Interest Period for a Loan shall not extend beyond its Maturity Date.



(G)

With effect from the close of Syndication, no more than five Interest Periods of one week may be selected during the 12 Month period commencing on the close of Syndication and thereafter no Interest Periods of one week may be selected, in each case unless otherwise agreed by the Agent (acting on the instructions of all the Lenders).

12.2 Overrunning of the Maturity Date

        If an Interest Period in respect of a Loan borrowed would otherwise overrun its Maturity Date, it shall be shortened so that it ends on its Maturity Date.

12.3 Other adjustments

(A)

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).



(B)

The Agent (after prior consultation with the Lenders) and the Parent Company may enter into such other arrangements as they may agree for the adjustment of Interest Periods.

12.4 Notification

        The Agent shall notify the relevant Borrower and the Lenders of the duration of each Interest Period promptly after ascertaining its duration.

13.   CHANGES TO THE CALCULATION OF INTEREST

13.1 Unavailability of Screen Rate

(A)

Interpolated Screen Rate:    If no Screen Rate is available for LIBOR for the Interest Period of a Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

31

(B)

Reference Bank Rate:    If no Screen Rate is available for LIBOR for:



(i)

the currency of a Loan; or



(ii)

the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.

(C)

Cost of funds:    If paragraph (B) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period, there shall be no LIBOR for that Loan and Clause 13.4 (Cost of funds) shall apply to that Loan for that Interest Period.

13.2 Calculation of Reference Bank Rate

(A)

Subject to paragraph (B) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.



(B)

If, at or about noon on the Quotation Day, none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.

13.3 Market disruption

        If, before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 50 per cent. of that Loan) that the cost to it of funding its participation in that Loan from the wholesale market for the relevant currency would be in excess of LIBOR then Clause 13.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

13.4 Cost of funds

(A)

If this Clause 13.4 (Cost of funds) applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:



(i)

the Margin; and



(ii)

the rate notified to the Agent by that Lender as soon as practicable and, in any event, before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.



(B)

If this Clause 13.4 (Cost of funds) applies and the Agent or the Parent Company so requires, the Agent and the Parent Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.



(C)

Any alternative basis agreed pursuant to paragraph (B) above shall, with the prior consent of all the Lenders and the Parent Company, be binding on all Parties.

13.5 Break Costs

(A)

Subject to Clause 8.1(D) (Mandatory prepayment on change of control), each Borrower shall, within five Business Days of demand by a Finance Party, pay to that Finance Party its Break

32

Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

(B)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

14.   FEES

14.1 Commitment fees

(A)

The Parent Company shall, in accordance with Clause 14.2 (Timing of payment of commitment fees), pay to the Agent:



(i)

for the account of each Facility A Lender, a fee in US dollars computed at the rate of the applicable Commitment Fee Rate multiplied by the applicable Margin in respect of Facility A on that Facility A Lender's Available Commitment for the Availability Period in respect of Facility A; and



(ii)

for the account of each Facility B Lender, a fee in US dollars computed at the rate of the applicable Commitment Fee Rate multiplied by the applicable Margin in respect of Facility B on that Facility B Lender's Available Commitment for the Availability Period in respect of Facility B.



(B)

The "Commitment Fee Rate" means, in relation to each Facility:



(i)

prior to the first Utilisation Date in respect of that Facility:



(a)

during the first Month of the Availability Period (or any part thereof), 10 per cent.;



(b)

during the second Month of the Availability Period (or any part thereof), 10 per cent.;



(c)

during the third Month of the Availability Period (or any part thereof), 10 per cent.;



(d)

during the fourth Month of the Availability Period (or any part thereof), 20 per cent.; and



(e)

during the fifth or any subsequent Month of the Availability Period (or any part thereof), 35 per cent.; and



(ii)

with effect from the first Utilisation Date in respect of that Facility, 35 per cent..

14.2 Timing of payment of commitment fees

(A)

Any accrued commitment fee is payable quarterly in arrear on the last day of each successive period of three Months which ends during the Availability Period in respect of the applicable Facility, on the last day of the Availability Period in respect of the applicable Facility and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective. The accrued commitment fee shall be paid within three Business Days after its due date.



(B)

No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

14.3 Extension fee

(A)

Following the delivery of each Extension Notice, the Parent Company shall pay to the Agent (in total and for the account of the Lenders of any Extended Facility A Loans, the Lenders in

33

respect of any Extended Facility A Commitments and the Lenders in respect of any Extended Facility B Commitments) an extension fee computed at the applicable Extension Fee Rate multiplied by the aggregate amount of the Extended Facility A Loans, the Extended Facility A Commitments and the Extended Facility B Commitments extended pursuant to the Extension Notices. Such fee shall be paid on the applicable Original Maturity Date.

(B)

The "Extension Fee Rate" means, if the aggregate amount of the Extended Facility A Loans, Extended Facility A Commitments and Extended Facility B Commitments extended pursuant to the Extension Notices is:



(i)

more than 50% of the aggregate amount of the Total Commitments on the date of this Agreement, 0.50 per cent.; and



(ii)

50% or less of the aggregate amount of the Total Commitments on the date of this Agreement, 0.25 per cent.

14.4 Drawdown fee and duration fee

        The Parent Company shall pay to the Agent (for the account of the relevant Lenders) a drawdown fee and a duration fee in each case in the amount and at the times agreed in a Fee Letter.

14.5 Agency fee

        The Parent Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS

15.   TAX GROSS-UP AND INDEMNITIES

15.1 Definitions

(A)

In this Agreement:

"HMRC DT Treaty Passport Scheme" means the HM Revenue & Customs Double Taxation Treaty Passport Scheme for overseas corporate lenders.

"Protected Party" means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

"Qualifying Lender" means:

(a)

with respect to an amount due from an Obligor incorporated in the United Kingdom or operating in the United Kingdom through a permanent establishment with which the relevant amount is connected:



(i)

a Lender which is beneficially entitled to the interest payable to that Lender in respect of an advance under a Finance Document and is a Lender:



(1)

which is a bank (as defined for the purpose of section 879 of the Income Tax Act 2007) making an advance under a Finance Document and which is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or



(2)

in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the Income Tax Act 2007) at the time that that advance was made, and which either is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA;



(ii)

a Treaty Lender with respect to the United Kingdom; or



(iii)

a Lender which is:



(1)

a company resident in the United Kingdom for United Kingdom Tax purposes;



(2)

a partnership each member of which is:



(A)

a company so resident in the United Kingdom; or



(B)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or



(3)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company,

35

(such Qualifying Lender within this Clause 15.1(A)(a) being a "UK Qualifying Lender"); and

(b)

with respect to a payment made by an Obligor resident for Tax purposes in Ireland or operating in Ireland through a branch or agency with which the relevant amount is connected:



(i)

a Lender which is beneficially entitled to the interest payable to that Lender in respect of an advance under a Finance Document and is:



(1)

a bank within the meaning of Section 246 of the TCA and which is recognised by the Revenue Commissioners of Ireland as carrying on a bona fide banking business in Ireland for the purposes of Section 246(3)(a) of the TCA, whose Facility Office is located in Ireland and which is regarded by the Revenue Commissioners of Ireland as having made the Utilisation for the purposes of Section 246(3)(a) of the TCA;



(2)

an authorised credit institution under the terms of Directive 2013/36/EC of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms that has duly established a branch in Ireland and has made all necessary notifications to its home state competent authorities required thereunder in relation to its intention to carry on banking business in Ireland and carries on a bona fide banking business in Ireland for the purposes of Section 246(3)(a) of the TCA and has its Facility Office located in Ireland;



(3)

a company (within the meaning of Section 246 of the TCA):



(A)

which, by virtue of the law of a Relevant Territory is resident in the Relevant Territory as defined in Section 246(1) of the TCA and that jurisdiction imposes a Tax that generally applies to interest receivable in that jurisdiction by companies from sources outside that jurisdiction; or



(B)

in receipt of interest which:



(x)

is exempted from the charge to Irish income tax pursuant to the terms of a double taxation treaty entered into between Ireland and another jurisdiction that is in force on the date the relevant interest is paid; or



(y)

would be exempted from the charge to Irish income tax pursuant to the terms of a double taxation treaty entered into between Ireland and another jurisdiction signed on or before the date on which the relevant interest is paid but not in force on that date, assuming that treaty had the force of law on that date by virtue of Section 826(1) of the TCA,

provided that, in the case of both (A) and (B) above, such company does not provide its commitment through or in connection with a trade or business which is carried out in Ireland by it through a branch or agency;

(4)

a US corporation that is incorporated in the US and is subject to US federal income tax on its worldwide income provided that such US corporation does not provide its commitment in connection with a trade or business which is carried on in Ireland through a branch or agency in Ireland;



(5)

a US LLC, where the ultimate recipients of the interest payable to that LLC satisfy the requirements set out in paragraph (3) above and the business conducted through the LLC is so structured for market reasons and not for tax avoidance purposes, provided that such LLC and the ultimate recipients of the relevant interest do not provide their commitment in connection with a trade or business which is carried on in Ireland through a branch or agency in Ireland;

36

(6)

a company (within the meaning of Section 246 of the TCA):



(A)

which advances money in the ordinary course of a trade which includes the lending of money;



(B)

in whose hands any interest payable in respect of money so advanced is taken into account in computing the trading income of that company;



(C)

which has complied with the notification requirements set out in Section 246(5)(a) of the TCA; and



(D)

whose Facility Office is located in Ireland;



(7)

a qualifying company (within the meaning of Section 110 of the TCA) and whose Facility Office is located in Ireland; or



(8)

an investment undertaking (within the meaning of Section 739B of the TCA) and whose Facility Office is located in Ireland; or



(ii)

a Treaty Lender with respect to Ireland,

(such Qualifying Lender within this Clause 15.1(A)(b) being an "Irish Qualifying Lender").

        "Relevant Territory" means:

(a)

a member state of the European Union (other than Ireland); or



(b)

to the extent it is not a member state of the European Union, a jurisdiction with which Ireland has entered into a double taxation treaty that either has the force of law by virtue of Section 826(1) of the TCA or which will have the force of law on completion of the procedures set out in Section 826(1) of the TCA.

"Tax Credit" means a credit against, relief or remission from, or repayment of, any Tax.

"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 15.2 (Tax gross-up) or a payment under Clause 15.3 (Tax indemnity).

"Treaty Lender", with respect to a jurisdiction, means a Lender which is, on the date any relevant payment falls due, entitled under the provisions of a double taxation treaty (a "Treaty") in force on that date to receive payments of interest from a person resident for the purposes of the relevant Treaty in such jurisdiction (or operating in such jurisdiction (other than Ireland) through a permanent establishment, branch or agency with which the relevant payments of interest are connected) without a Tax Deduction (subject to the completion of any necessary procedural formalities, such as an application by a Lender to HM Revenue & Customs or the Irish Revenue Commissioners, as appropriate, that payments may be made to that Lender without a Tax Deduction).

"UK Non-Bank Lender" means:

(i)

where a Lender becomes a Party on the day on which this Agreement is entered into, a Lender identified in Part I or Part II of Schedule 1 (The Original Lenders) as a UK Non-Bank Lender; and



(ii)

where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a UK Tax Confirmation in the Assignment Agreement, Transfer Certificate or Increase Confirmation which it executes on becoming a Party.

37

"UK Tax Confirmation" means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

(i)

a company resident in the United Kingdom for United Kingdom Tax purposes;



(ii)

a partnership each member of which is:



(a)

a company so resident in the United Kingdom; or



(b)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or



(iii)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.



(B)

Unless a contrary indication appears, in this Clause 15 a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.

15.2 Tax gross-up

(A)

Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.



(B)

The Parent Company shall promptly upon becoming aware that an Obligor is required by law to make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly.



(C)

Each Lender as at the date of this Agreement confirms that it is a UK Qualifying Lender and an Irish Qualifying Lender. This confirmation is given as at the date of this Agreement. A Lender which becomes party to this Agreement by means of a Transfer Certificate or Increase Confirmation or which becomes a New Lender by virtue of execution of an Assignment Agreement shall confirm therein (i) that it is a UK Qualifying Lender and an Irish Qualifying Lender and (ii) for the benefit of the Agent and without liability to any Obligor, whether it is a Treaty Lender with respect to the UK and/or Ireland (and, in respect of Ireland, whether it is a Treaty Lender which is not otherwise an Irish Qualifying Lender), and shall indicate, by giving or not giving a UK Tax Confirmation, whether it is a UK Non-Bank Lender. If a New Lender fails to indicate its status in accordance with this Clause 15.2(C), then such New Lender shall be treated for the purposes of this Agreement (individually by each Obligor) as if it is not a UK Qualifying Lender or an Irish Qualifying Lender, in each case until such time as it notifies the Agent of its status. Each Lender which confirmed that it was a UK Qualifying Lender and an Irish Qualifying Lender undertakes to notify the Agent and the Parent Company promptly upon becoming aware of it ceasing to be a UK Qualifying Lender or an Irish Qualifying Lender (as applicable) (other than as a result of any change after it became a Lender under this Agreement in (or in the interpretation, administration or application of) any law or Treaty, or any published practice or concession of any relevant Tax authority). If the Agent receives such notification from a Lender, it shall notify the Parent Company and the relevant Obligor. For the avoidance of doubt, a Transfer Certificate, Increase Confirmation or Assignment Agreement shall not be invalidated by any failure of a Lender to comply with this Clause 15.2(C).

38

(D)

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.



(E)

An Obligor is not required to make an increased payment to a Lender under paragraph (D) above for a Tax Deduction in respect of Tax imposed:



(i)

by the United Kingdom from a payment of interest on a Loan if, on the date on which the payment falls due:



(a)

the payment could have been made to the relevant Lender without a Tax Deduction if it was a UK Qualifying Lender (other than a Lender that is a UK Qualifying Lender by virtue only of being a Treaty Lender with respect to the United Kingdom), but on that date that Lender is not or has ceased to be a UK Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant Tax authority; or



(b)

the relevant Lender is a UK Qualifying Lender solely by virtue of paragraph (a)(iii) of the definition of Qualifying Lender in Clause 15.1(A) and:



(1)

an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a "Direction") under Section 931 of the Income Tax Act 2007 which relates to the payment and that Lender has received from the Obligor making the payment or from the Parent Company a certified copy of that Direction; and



(2)

the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or



(c)

the relevant Lender is a UK Qualifying Lender solely by virtue of paragraph (a)(iii) of the definition of Qualifying Lender in Clause 15.1(A) and:



(1)

the relevant Lender has not given a UK Tax Confirmation to the Obligor making the payment; and



(2)

the payment could have been made to the Lender without any Tax Deduction if the Lender had given a UK Tax Confirmation to the Obligor making the payment, on the basis that the UK Tax Confirmation would have enabled that Obligor to have formed a reasonable belief that the payment was an "excepted payment" for the purpose of Section 930 of the Income Tax Act 2007; or



(d)

the relevant Lender is a UK Qualifying Lender by virtue only of being a Treaty Lender with respect to the United Kingdom and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations, if any, under any of paragraphs (H) to (J) below; or



(ii)

by Ireland from a payment of interest on a Loan if, on the date on which the payment falls due:



(a)

the payment could have been made to the relevant Lender without a Tax Deduction if it was an Irish Qualifying Lender (other than a Lender that is an Irish Qualifying Lender by virtue only of being a Treaty Lender with respect to Ireland) but on that date that Lender is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in

39

(or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant Tax authority; or

(b)

the relevant Lender is a Treaty Lender with respect to Ireland (and not otherwise an Irish Qualifying Lender) and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations, if any, under paragraphs (H) or (K) below.



(F)

If an Obligor is required by law to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.



(G)

Within thirty days of making either a Tax Deduction or any payment to the relevant Tax authority required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant authority.



(H)

(i) Subject to sub-paragraph (H)(ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing as soon as reasonably practicable any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.



(ii)

Nothing in this paragraph (H) shall require a Treaty Lender with respect to the UK (a "UK Treaty Lender") to:



(a)

register under the HMRC DT Treaty Passport Scheme;



(b)

apply the HMRC DT Treaty Passport Scheme to any Loan if it has so registered; or



(c)

file Treaty forms if it has made, or is deemed to have made, a notification in accordance with paragraphs (I) or (J) below and either: (1) the UK Borrower making that payment has not complied with its obligations under paragraph (N) below; or (2) the application made by the UK Borrower using form DTTP2 has been unsuccessful, unless in the case of (2) only, the UK Borrower notifies the UK Treaty Lender in writing to that effect, in which case the UK Treaty Lender shall co-operate in completing as soon as reasonably practicable from the date of such written notification any procedural formalities necessary to comply with its obligations under this paragraph (H).



(I)

Each Original Lender which is a UK Treaty Lender and which wishes the HMRC DT Treaty Passport Scheme to apply to each Loan made by it to a UK Borrower pursuant to this Agreement shall notify the Agent and the Parent Company, within 10 days of the date of this Agreement, that it holds a passport under the HMRC DT Treaty Passport Scheme and that it wishes the HMRC DT Treaty Passport Scheme to apply to each such Loan (and such notification shall include the scheme reference number of that passport and the jurisdiction of Tax residence of the Lender), provided that such Lender can satisfy such notification requirements by including its scheme reference number and jurisdiction of Tax residence opposite its name in Part I and/or Part II of Schedule 1 (The Original Lenders).



(J)

Each New Lender which becomes a Party in accordance with Clause 27 (Changes to the Lenders) and each Increase Lender which becomes a Party in accordance with Clause 2.2 (Increase) that, in each case, is a UK Treaty Lender and which wishes the HMRC DT Treaty Passport Scheme to apply to each Loan made by it to a UK Borrower pursuant to this Agreement or made by another person to a UK Borrower under this Agreement and assigned

40

or otherwise transferred to it shall notify the Agent and the Parent Company within 10 days of the date it becomes a Party that it holds a passport under the HMRC DT Treaty Passport Scheme and that it wishes the HMRC DT Treaty Passport Scheme to apply to each such Loan (and such notification shall include the scheme reference number of that passport and the jurisdiction of Tax residence of the Lender) provided that such Lender can satisfy such notification requirements by including its scheme reference number and jurisdiction of Tax residence opposite its name in the Transfer Certificate, Assignment Agreement or Increase Confirmation (as applicable) that it executes on becoming a Party as long as the Parent Company receives that Transfer Certificate, Assignment Agreement or Increase Confirmation within 10 days of execution.

(K)

A Treaty Lender with respect to Ireland shall, promptly after it becomes a Lender:



(i)

deliver such forms as may be required by the relevant Tax authorities; and



(ii)

use all reasonable endeavours to ensure that all procedural formalities are completed, so that the Borrower obtains authorisation to make that payment without a Tax Deduction including, but not limited to, making and filing an appropriate application for relief under the relevant double taxation treaty.



(L)

Any Irish Qualifying Lender to which interest may be paid free of withholding tax due to such Lender falling within Section 246(3)(h) of the TCA shall, following a request from the Borrower, confirm its name, address and country of Tax residence to the Borrower to enable it to comply with its reporting obligations under Section 891A of the TCA.



(M)

Any Irish Qualifying Lender shall provide to the Borrower and update (or cause to be provided and updated) any correct, complete and accurate information reasonably requested and necessary (in the sole determination of the Borrower) for the Borrower in order to permit the Borrower to comply with its obligation under Section 891E of the TCA and all regulations made pursuant to that section.



(N)

Where a UK Treaty Lender makes, or is deemed to make, a notification pursuant to either of paragraph (I) or paragraph (J) above:



(i)

each UK Borrower which is a Party as a Borrower as at the date of this Agreement (in the case of a notification pursuant to paragraph (I) above) or as at the relevant Transfer Date or the date on which the increase in the relevant Commitment described in the relevant Increase Confirmation takes effect (in the case of a notification pursuant to paragraph (J) above) shall file a duly completed form DTTP2 in respect of such UK Treaty Lender with HM Revenue & Customs within 20 days of the Parent Company receiving (or being deemed to receive) the relevant notification and shall promptly provide that UK Treaty Lender with a copy of that filing; and



(ii)

each UK Borrower which becomes a Party as a Borrower after the date of this Agreement (in the case of a notification pursuant to paragraph (I) above) or after the relevant Transfer Date or the date on which the increase in the relevant Commitment described in the relevant Increase Confirmation takes effect (in the case of a notification pursuant to paragraph (J) above) shall file a duly completed form DTTP2 in respect of such UK Treaty Lender with HM Revenue & Customs within 30 days of its becoming a Party and shall promptly provide that UK Treaty Lender with a copy of that filing,

and, for the purposes of this paragraph (N), a form DTTP2 which contains erroneous information shall not be regarded as not being "duly completed" to the extent that erroneous information has been provided to the UK Borrower in question by the relevant UK Treaty Lender.

41

(O)

Where a UK Treaty Lender does not make, and is not deemed to have made, any notification pursuant to either of paragraph (I) or (J) above, no UK Borrower or Additional Borrower which is a UK Borrower shall file any forms relating to the HMRC DT Treaty Passport Scheme in respect of that UK Treaty Lender.



(P)

A UK Non-Bank Lender shall promptly notify the Parent Company and the Agent if there is any change in the position from that set out in the UK Tax Confirmation.

15.3 Tax indemnity

(A)

The Parent Company shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to any loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document or the transactions occurring under such Finance Document.



(B)

Paragraph (A) above shall not apply:



(i)

with respect to any Tax assessed on a Finance Party:



(a)

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for Tax purposes or as having a permanent establishment for Tax purposes through which it has negotiated or manages or administers its participation in any Facility; or



(b)

under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if in either such case that Tax is imposed on or calculated by reference to the net income, profit or gains received or receivable (but not any sum deemed to be received or receivable) by that Finance Party, permanent establishment or Facility Office; or

(ii)

to the extent a loss, liability or cost:



(a)

is compensated for by an increased payment under Clause 15.2 (Tax gross-up) or a payment under Clause 15.5 (Stamp Taxes) or Clause 15.6 (VAT);



(b)

would have been compensated for by an increased payment under Clause 15.2 (Tax gross-up) but was not so compensated for solely because any or all of the exclusions in paragraph (E) of Clause 15.2 (Tax gross-up) applied;



(c)

would have been compensated for by a payment under Clause 15.5 (Stamp Taxes) or Clause 15.6 (VAT) but was not so compensated for solely because one of the exclusions in those Clauses applied;



(d)

relates to any Tax assessed prior to the date which is 365 days prior to the date on which the Protected Party requests such payment from the Parent Company, unless a determination of the amount claimed could be made only on or after the earlier of those dates; or



(e)

relates to a FATCA Deduction required to be made by any person.



(C)

A Protected Party making, or intending to make, a claim under paragraph (A) above shall promptly notify the Agent of the loss, liability or cost which will give, or has given, rise to the claim, following which the Agent shall reasonably promptly notify the Parent Company.

42

(D)

A Protected Party shall, on receiving a payment from an Obligor under this Clause 15.3, notify the Agent.

15.4 Tax Credit

        If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

(A)

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to the circumstances giving rise to that Tax Payment; and



(B)

that Finance Party has obtained, utilised and retained the benefit of that Tax Credit in whole or in part,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines (acting reasonably) will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

15.5 Stamp taxes

        The Parent Company shall pay and, within five Business Days of demand, indemnify each Finance Party against any cost, loss or liability that that Finance Party incurs in relation to all stamp duty, registration, excise and other similar Taxes payable in respect of any Finance Document or the transaction occurring under any of them other than in respect of an assignment or transfer by a Lender.

15.6 VAT

(A)

All consideration expressed to be payable under a Finance Document by any Party to a Finance Party shall be deemed to be exclusive of any amounts in respect of VAT. If VAT is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document and such Finance Party is required to account to the relevant Tax authority for the VAT, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT against delivery of an appropriate VAT invoice.



(B)

If VAT is chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any other Party (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):



(i)

(where the Supplier is the person required to account to the relevant Tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment that the Recipient receives from the relevant Tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and



(ii)

(where the Recipient is the person required to account to the relevant Tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that the Recipient is not entitled to credit or repayment from the relevant Tax authority in respect of that VAT.



(C)

Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that obligation shall be deemed to extend to all amounts in respect of VAT incurred

43

by the Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that the Finance Party is not entitled to credit or repayment of the amount in respect of the VAT from the relevant Tax authority.

(D)

Any reference in this Clause 15.6 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).



(E)

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.

15.7 FATCA Information

(A)

Subject to paragraph (C) below, each Party shall, within 10 Business Days of a reasonable request by another Party:



(i)

confirm to that other Party whether it is:



(a)

a FATCA Exempt Party; or



(b)

not a FATCA Exempt Party;



(ii)

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and



(iii)

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.



(B)

If a Party confirms to another Party pursuant to paragraph (A)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.



(C)

Paragraph (A) above shall not oblige any Finance Party to do anything, and paragraph (A)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:



(i)

any law or regulation;



(ii)

any fiduciary duty; or



(iii)

any duty of confidentiality.



(D)

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (A)(i) or (A)(ii) above (including, for the avoidance of doubt, where paragraph (C) above applies), then such

44

Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

15.8 FATCA Deduction

(A)

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.



(B)

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, notify the Parent Company, the Agent and the other Finance Parties.

15.9 Survival of obligations

        Without prejudice to the survival of any other section of this Agreement, the agreements and obligations of each Obligor and each Finance Party contained in this Clause 15 (Tax gross-up and indemnities) shall survive the payment in full by the Obligors of all obligations under this Agreement and the termination of this Agreement.

16.   INCREASED COSTS

16.1 Increased Costs

(A)

Subject to Clause 16.3 (Exceptions) the Parent Company shall, within five Business Days of a demand by the Agent, pay for the account of a Finance Party an amount equal to the Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the judicial or generally accepted interpretation or the administration or application of) any law or regulation, (ii) compliance with any law or regulation made after the date of this Agreement or (iii) the application of or compliance with Basel III or CRD IV (each as defined in Clause 16.3 (Exceptions) below), provided that the relevant Finance Party confirms to the Agent and the Parent Company that it is seeking to recover Basel III or CRD IV costs to a similar extent from its borrowers generally where the facilities extended to such borrowers include a right for the Finance Party to recover such costs.



(B)

In this Agreement "Increased Costs" means:



(i)

a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital;



(ii)

an additional or increased cost; or



(iii)

a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.

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16.2 Increased Costs claims

(A)

A Finance Party intending to make a claim pursuant to Clause 16.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Parent Company.



(B)

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

16.3 Exceptions

(A)

Clause 16.1 (Increased Costs) does not apply to the extent any Increased Cost is:



(i)

attributable to a Tax Deduction required by law to be made by an Obligor or to a FATCA Deduction required to be made by any person;



(ii)

compensated for by Clause 15.3 (Tax indemnity), Clause 15.5 (Stamp Taxes) or Clause 15.6 (VAT) (or would have been compensated for under those clauses but was not so compensated for because any of the exclusions, exceptions or carve-outs to such clauses applied);



(iii)

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;



(iv)

incurred more than 180 days before the date on which the Finance Party makes a claim in accordance with Clause 16.2 (Increased Costs claims) or gives notice to the Parent Company (through the Agent) of its intention to do so (and provided that if any such notice is given, the applicable claim must then be made no later than 365 days after the date of such notice), unless a determination of the amount incurred could be made only on or after the latest date described above; or



(v)

attributable to the implementation or application of or compliance with the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework" published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) ("Basel II") or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).



(B)

In this Clause 16.3 (Exceptions):



(i)

a reference to a "Tax Deduction" has the same meaning given to the term in Clause 15.1 (Definitions);



(ii)

"Basel III" means:



(a)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented and restated;



(b)

the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement—Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

46

(c)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III"; and



(iii)

"CRD IV" means:



(a)

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and



(b)

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.

17.   OTHER INDEMNITIES

17.1 Currency indemnity

(A)

If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:



(i)

making or filing a claim or proof against that Obligor; or



(ii)

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within five Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (i) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (ii) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

(B)

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

17.2 Other indemnities

        The Parent Company shall (or shall procure that an Obligor will), within five Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

(A)

the occurrence of any Event of Default;



(B)

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including, without limitation, any cost, loss or liability arising as a result of Clause 31 (Sharing among the Finance Parties);



(C)

funding, or making arrangements to fund, its participation in a Loan requested by a Borrower (or the Parent Company on behalf of a Borrower) in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or



(D)

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Parent Company.

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17.3 Acquisition indemnity

(A)

The Parent Company shall (or shall procure that an Obligor will) within five Business Days of demand indemnify each Indemnified Person against any liability, loss, cost or expense (including reasonable legal fees) incurred by or awarded against that Indemnified Person arising out of, in connection with or based on:



(i)

the Acquisition (whether or not completed); or



(ii)

the use of proceeds of any Loan,

except to the extent such liability, loss, cost or expense (including reasonable legal fees) incurred or awarded against an Indemnified Person results from any breach by that Indemnified Person of a Finance Document or results directly from the fraud, gross negligence or wilful misconduct of that Indemnified Person.

(B)

The Parent Company shall (or shall procure that an Obligor will) within five Business Days of demand indemnify each Indemnified Person against any third party cost or expense (including reasonable legal fees) incurred by any Indemnified Person in connection with investigating, preparing, pursuing or defending any action, claim, suit, investigation or proceeding arising out of or in connection with, or based on the matters referred to in paragraph (A)(i) or (ii) above, except to the extent such cost or expense (including legal fees) results directly from the fraud, gross negligence or wilful misconduct of that Indemnified Person.



(C)

For the purposes of this Clause 17.3 (Acquisition Indemnity), "Indemnified Person" means each Finance Party in its capacity as such, any of its Affiliates and each of its (or its Affiliates') respective directors, officers, employees and agents.



(D)

No Finance Party shall have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made or required to be made under paragraph (A) or (B) above.



(E)

The Parent Company agrees that no Indemnified Person shall have any liability to the Company or any of its Affiliates for or in connection with anything referred to in paragraph (A) or (B) above except for any such liability, damages, loss, cost or expense incurred by the Company or any of its Affiliates that results directly from any breach by that Indemnified Person of any Finance Document or from the fraud, gross negligence or wilful misconduct of that Indemnified Person.

17.4 Indemnity to the Agent

        The Parent Company shall, within five Business Days of demand, indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

(A)

investigating any event which it reasonably believes is a Default;



(B)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or



(C)

instructing lawyers, accountants, Tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

18.   MITIGATION BY THE LENDERS

18.1 Mitigation

(A)

Each Finance Party shall, in consultation with the Parent Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming

48

payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 15 (Tax gross-up and indemnities) or Clause 16 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

(B)

Paragraph (A) above does not in any way limit the obligations of any Obligor under the Finance Documents.



(C)

Each Finance Party shall notify the Agent as soon as reasonably practicable after it becomes aware that any circumstances of the kind described in paragraph (A) above have arisen or may arise. The Agent shall notify the Parent Company promptly of any such notification from a Finance Party.

18.2 Limitation of liability

(A)

The Parent Company shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 18.1 (Mitigation).



(B)

A Finance Party is not obliged to take any steps under Clause 18.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

19.   COSTS AND EXPENSES

19.1 Transaction expenses

        The Parent Company shall promptly on demand pay the Agent and the Arrangers reasonable professional fees and all out of pocket expenses (including legal fees subject to any cap referred to in a Fee Letter but excluding any transfer Taxes in respect of any assignment or transfer by a Lender) properly incurred by any of them in connection with the negotiation, preparation, printing and execution of:

(A)

this Agreement and any other documents referred to in this Agreement; and



(B)

any other Finance Documents executed after the date of this Agreement.

19.2 Amendment costs

        If:

(A)

an Obligor requests an amendment, waiver or consent; or



(B)

an amendment is required pursuant to Clause 32.10 (Change of currency),

the Parent Company shall, within five Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.

19.3 Enforcement costs

        The Parent Company shall, within five Business Days of demand, pay to each Finance Party the amount of all:

(A)

reasonable costs and expenses (including legal fees) incurred by that Finance Party in connection with the preservation; and



(B)

costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement,

of any rights under any Finance Document.

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SECTION 7
GUARANTEE

20.   GUARANTEE AND INDEMNITY

20.1 Guarantee and indemnity

        Each Guarantor irrevocably and unconditionally jointly and severally:

(A)

guarantees to each Finance Party punctual performance by each Borrower of all that Borrower's obligations under the Finance Documents;



(B)

undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and



(C)

indemnifies each Finance Party immediately on demand against any cost, loss or liability suffered by that Finance Party if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.

20.2 Continuing guarantee

        This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

20.3 Reinstatement

        If any payment by an Obligor or any discharge given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event:

(A)

the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and



(B)

each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.

20.4 Waiver of defences

        The obligations of each Guarantor under this Clause 20 (Guarantee and indemnity) will not be affected by an act, omission, matter or thing which, but for this Clause 20.4 (Waiver of defences), would reduce, release or prejudice any of its obligations under this Clause 20 (Guarantee and indemnity) (without limitation and whether or not known to it or any Finance Party) including:

(A)

any time, waiver or consent granted to, or composition with, any Obligor or other person;



(B)

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;



(C)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

50

(D)

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;



(E)

any amendment (however fundamental) or replacement of a Finance Document or any other document or security;



(F)

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or



(G)

any insolvency or similar proceedings.

20.5 Immediate recourse

        Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 20 (Guarantee and indemnity). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

20.6 Appropriations

        Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

(A)

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and



(B)

hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 20 (Guarantee and indemnity).

20.7 Deferral of Guarantors' rights

        Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents (including under Clause 20.11 (Limitations on guarantee under US law)):

(A)

to be indemnified by an Obligor;



(B)

to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents; and/or



(C)

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 guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party.

20.8 Release of Guarantor's right of contribution

        If any Guarantor (a "Retiring Guarantor") ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:

(A)

that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other

51

Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

(B)

each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents 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 any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

20.9 Additional security

        This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

20.10  Waiver of defences under Jersey law

        Each Obligor irrevocably and unconditionally waives such right as it may have or claim under Jersey law:

(A)

whether by virtue of the droit de discussion or otherwise to require that recourse be had by any Finance Party to the assets of any other Obligor or any other person before any claim is enforced against that Obligor in respect of the obligations assumed by it under any of the Finance Documents;



(B)

whether by virtue of the droit de division or otherwise to require that any liability under any of the Finance Documents be divided or apportioned with any other Obligor or any other person or reduced in any manner whatsoever; and



(C)

to require that any other Obligor and/or any other person be joined in, or otherwise made a party to, any proceedings brought against it in respect of its obligations under any Finance Document,

and each Obligor irrevocably agrees to be bound by its obligations under the Finance Documents irrespective of whether or not the formalities required by Jersey law relating to the rights or obligations of sureties have been complied with or observed.

20.11  Limitations on guarantee under US law

(A)

Notwithstanding anything to the contrary contained herein or in any other Finance Document:



(i)

each Finance Party agrees that the maximum liability of each Guarantor under this Clause 20 (Guarantee and indemnity) shall in no event exceed an amount equal to the greatest amount that would not render such Guarantor's obligations hereunder and under the other Finance Documents subject to avoidance under US Bankruptcy Law or to being set aside, avoided or annulled under any Fraudulent Transfer Law, in each case after giving effect to:



(a)

all other liabilities of such Guarantor, contingent or otherwise, that are relevant under such Fraudulent Transfer Law (specifically excluding, however, any liabilities of such Guarantor in respect of intercompany indebtedness to any Borrower to the extent that such Financial Indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder); and

52

(b)

the value as assets of such Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Law) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor pursuant to:



(1)

applicable law; or



(2)

any other agreement providing for an equitable allocation among such Guarantor and the borrowers and other Guarantors of obligations arising under this Agreement or other guarantees of such obligations by such parties; and



(ii)

each Party agrees that, in the event any payment or distribution is made on any date by a Guarantor under this Clause 20 (Guarantee and indemnity), each such Guarantor shall (subject to Clause 20.7 (Deferral of Guarantors' rights) above) be entitled to be indemnified from each other Guarantor in an amount equal to such payment, in each case multiplied by a fraction of which the numerator shall be the net worth of the contributing Guarantor and the denominator shall be the aggregate net worth of all the Guarantors.

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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

21.   REPRESENTATIONS

21.1 Time of representations

(A)

Subject to paragraph (B) below, each Obligor makes the representations and warranties set out in this Clause 21 (Representations) to each Finance Party on the date of this Agreement.



(B)

The representations given at paragraphs (B) and (C) of Clause 21.11 (No misleading information) below are made on the Information Memorandum Date and on the close of Syndication only.

21.2 Status

(A)

It is a corporation or a company, as applicable, duly incorporated and validly existing under the law of its jurisdiction of incorporation.



(B)

It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

21.3 Binding obligations

        The obligations expressed to be assumed by it in each Finance Document are, subject to laws or legal procedures affecting the enforceability of creditors' rights generally and any other reservations set out in the legal opinions listed in Part I(A) of Schedule 2 (Conditions precedent to initial Utilisation) or delivered in connection with an Obligor's accession to this Agreement, legal, valid, binding and enforceable obligations.

21.4 Non-conflict with other obligations

        The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:

(A)

any law or regulation applicable to it;



(B)

its or any of its Subsidiaries' constitutional documents; or



(C)

any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets which conflict would reasonably be likely to have a Material Adverse Effect.

21.5 Power and authority

        It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated for it by those Finance Documents.

21.6 Validity and admissibility in evidence

        All Authorisations required:

(A)

to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and



(B)

to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

54

(other than as disclosed in a legal opinion delivered to the Agent pursuant to Part I(A) of Schedule 2 (Conditions precedent to initial Utilisation) or in connection with an Obligor's accession to this Agreement) have been obtained or effected and are in full force and effect.

21.7 Governing law and enforcement

(A)

The choice of English law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.



(B)

Any judgment obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.

21.8 Deduction of Tax

        It is not required to make any deduction for or on account of:

(A)

United Kingdom Tax from any payment it may make under any Finance Document to a Lender so long as the Lender is a UK Qualifying Lender falling within paragraph (a)(i) of the definition of "Qualifying Lender" in Clause 15.1(A) (Definitions);



(B)

Irish Tax from any payment it may make under any Finance Document to a Lender so long as the Lender is an Irish Qualifying Lender (provided that where the Irish Qualifying Lender is a Treaty Lender with respect to Ireland all procedural formalities have been completed); and



(C)

Jersey Tax from any payment it may make under any Finance Document to a Lender.

21.9 No filing or stamp taxes

        Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar Tax be paid in such jurisdiction on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents other than in respect of an assignment or transfer by a Lender.

21.10  No default

        No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.

21.11  No misleading information

        Save as disclosed in writing to the Agent and the Arrangers prior to the date of this Agreement or, in the case of paragraphs (B) and (C) below, prior to the close of Syndication:

(A)

any factual information, including any information which discloses evidence of material litigation which is pending or threatened, provided by or on behalf of any member of the Group to any of the Finance Parties prior to the date of this Agreement in connection with its entry into this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated;



(B)

no information has been given or withheld that results in the information referred to in paragraph (A) above being untrue or misleading in any material respect;

55

(C)

any factual information contained in the Information Memorandum provided by or on behalf of any member of the Group was (to the best of the Company's knowledge and belief, having made reasonable enquiries, in the case of factual information relating to the Target), true and accurate and complete in all material respects as at the date of the Information Memorandum or (as the case may be) as at the date the information is expressed to be given and nothing has occurred or been omitted which would result in the information being inaccurate or misleading in any material respect; and



(D)

as of the date of this Agreement, there has been no change in the business or the consolidated financial condition of the Group since the date of its last audited financial statements that would have a Material Adverse Effect.

21.12  Financial statements

        In the case of the Parent Company only:

(A)

its Original Financial Statements were prepared in accordance with US GAAP consistently applied; and



(B)

its Original Financial Statements fairly represent its financial condition and operations (consolidated) during the relevant financial year.

21.13  Pari passu ranking

        Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

21.14  Anti-corruption law

        Its policy is to conduct its businesses in compliance with applicable anti-corruption laws and it has instituted and maintained, and will continue to maintain, policies and procedures reasonably designed to promote compliance with such laws.

21.15  Sanctions

        Its policy is and will continue to be to conduct its businesses in compliance with applicable sanctions enforced by the U.S. Department of Treasury's Office of Foreign Assets Control, the United Nations Security Council and the European Union or Her Majesty's Treasury (collectively, "Sanctions").

21.16  ERISA Matters

        No Obligor or ERISA Affiliate has during the past five years maintained, contributed to or had an obligation to contribute to any Employee Plan or Multiemployer Plan.

21.17  Federal Reserve regulations

        No part of the proceeds of any Utilisation will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which violates the provisions of the regulations of the Federal Reserve Board.

21.18  The Parent Company

        As a matter of Irish law, the Parent Company is resident for Tax purposes in Ireland on the basis that its place of central management and control is in Ireland.

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21.19  Repetition

(A)

The Repeating Representations are deemed to be made by each Obligor (by reference to the facts and circumstances then existing) on:



(i)

the date of each Utilisation Request and the first day of each Interest Period;



(ii)

in the case of an Additional Obligor, the day on which such company becomes (or it is proposed that such company becomes) an Additional Obligor; and



(iii)

each Newco Scheme Date.



(B)

The representation in Clause 21.14 (Anti-corruption law) is deemed to be made by each Additional Obligor (by reference to the facts and circumstances then existing) on the day on which such company becomes (or it is proposed that such company becomes) an Additional Obligor.

22.   INFORMATION UNDERTAKINGS

        The undertakings in this Clause 22 (Information undertakings) remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

22.1 Financial statements

        The Parent Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

(A)

by the end of the following Business Day after the same becomes publicly available, but in any event within 120 days after the end of each of its financial years, its audited consolidated financial statements for that financial year; and



(B)

by the end of the following Business Day after the same becomes publicly available, but in any event within 90 days after the end of the first half of each of its financial years, its unaudited consolidated financial statements for that financial half year.

22.2 Compliance Certificate

(A)

The Parent Company shall supply to the Agent, with each set of financial statements delivered pursuant to paragraphs (A) and (B) of Clause 22.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 23 (Financial covenants) as at the date as at which those financial statements were drawn up.



(B)

Each Compliance Certificate shall be signed by two signatories of the Parent Company authorised pursuant to the resolutions and by reference to specified signatures, in each case as referred to in Schedule 2 (Conditions precedent) and as may be updated from time to time in a manner satisfactory to the Agent (acting reasonably).

22.3 Requirements as to financial statements

(A)

The Parent Company shall procure that each set of financial statements delivered pursuant to Clause 22.1 (Financial statements) is prepared using US GAAP.



(B)

Following the completion of any Newco Scheme, Top Newco shall supply to the Agent, together with its audited consolidated financial statements for the financial year in which the relevant Newco Scheme has completed and required to be delivered pursuant to paragraph (A) of Clause 22.1 (Financial statements), a reconciliation between those

57

consolidated financial statements and the consolidated financial statements of the Company or, as applicable, the previously interposed Top Newco relevant to the financial year in which the Newco Scheme has completed.

(C)

The Parent Company shall procure that each set of financial statements delivered pursuant to Clause 22.1 (Financial statements) is prepared using US GAAP and accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements:



(i)

there has been a change in US GAAP or accounting practices which is relevant to the preparation of that set of financial statements but which does not have any impact upon calculations for the purposes of establishing compliance with Clause 23.2 (Financial condition), and such change has been disclosed in a Form 10K or 10Q statement filed by (or on behalf of) the Parent Company with the SEC; or



(ii)

there has been a change in:



(a)

US GAAP or accounting practices which has an impact upon calculations for the purposes of establishing compliance with Clause 23.2 (Financial condition); or



(b)

financial reference periods; and

the Parent Company notifies the Agent that there has been such change and delivers to the Agent, if and to the extent reasonably necessary for the purposes of establishing compliance with Clause 23.2 (Financial condition) taking into account any disclosure which has been made in any relevant Form 10K or 10Q filed by (or on behalf of) the Parent with the SEC:

(1)

a description of any change necessary for those financial statements to reflect the US GAAP, accounting practices and reference periods upon which those Original Financial Statements were prepared; and



(2)

sufficient information, in form and substance as may reasonably be required by the Agent, to enable the Lenders to determine whether Clause 23 (Financial covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and those Original Financial Statements.

Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

(D)

If the Parent Company notifies the Agent of a change in accordance with paragraph (C)(ii)(a) above, the Parent Company and Agent shall enter into negotiations in good faith with a view to agreeing:



(i)

whether or not the change might result in any material alteration in the commercial effect of any of the terms of this Agreement; and



(ii)

if so, any amendments to this Agreement which may be necessary to ensure that the change does not result in any material alteration in the commercial effect of those terms,

and if any amendments are agreed they shall take effect and be binding on each of the Parties in accordance with their terms.

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22.4 Information: miscellaneous

        The Parent Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

(A)

all documents dispatched by the Parent Company to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;



(B)

copies of any public announcement made by the Parent Company which discloses the details of any material litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group; and



(C)

promptly, such further information as any Finance Party (through the Agent) may reasonably request at reasonable times and at reasonable intervals.

22.5 Notification of Default

        Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification regarding such Default has already been provided by another Obligor).

22.6 "Know your customer" checks

(A)

If:



(i)

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;



(ii)

any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or



(iii)

a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender (which would be permitted under Clause 27 (Changes to the Lenders)) prior to such assignment or transfer,

obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is within that Obligor's possession or control reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

(B)

Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks required under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.



(C)

The Parent Company shall, by not less than 10 Business Days' prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 28 (Changes to the Obligors).

59

(D)

Following the giving of any notice pursuant to paragraph (C) above, if the accession of such Additional Obligor obliges the Agent or any Lender to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, the Parent Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with the results of all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor.

22.7 "Know your customer" confirmation

        Each Lender confirms as at the date of this Agreement that, under "know your customer" requirements in existence as at the date of this Agreement, it does not require financial statements for Obligors other than the Company.

23.   FINANCIAL COVENANTS

23.1 Financial definitions

(A)

For the purpose of this Clause 23 (Financial covenants), amounts computed for the Group shall represent those assets, liabilities, income and expenses contained in the accounting records of the Parent Company and its Subsidiaries. For the avoidance of doubt, such amounts and the financial covenants shall not include any assets, liabilities, income and expenses recorded in any variable interest entity which the Group consolidates under US GAAP pursuant to Accounting Standards Codification 810, Consolidation (formerly FIN 46(R), Consolidation of Variable Interest Entities—An Interpretation of ARB No. 51, as amended by FAS 167, Amendments to FASB Interpretation No. 46(R)).



(B)

In this Clause 23 (Financial covenants):

"Acquisition Costs" means all fees, costs and expenses, stamp, registration and other Taxes incurred by the Parent Company or any other member of the Group in connection with any acquisition following the date of this Agreement.

"Borrowings" means, at any time, any indebtedness in respect of:

(a)

the principal amount of moneys borrowed and any net debit balances at banks after application of applicable account pooling arrangements;



(b)

the principal amount raised under acceptance credit facilities other than acceptances relating to the purchase or sale of goods in the ordinary course of trading;



(c)

the principal amount of any debenture, bond, note, loan stock, commercial paper or other securities;



(d)

the capitalised element of indebtedness under finance leases or capital leases entered into primarily as a method of raising finance or financing the acquisition of the asset leased;



(e)

receivables sold or discounted other than receivables sold or discounted in the ordinary course of trading or on non-recourse terms;



(f)

indebtedness arising from deferred payment agreements except in the ordinary course of trading (and excluding, for the avoidance of doubt, milestone and deferred consideration

60

payments in respect of acquisitions of shares or other assets which are the subject of any acquisition);

(g)

any fixed or minimum premium payable on repayment of any debt instrument;



(h)

principal amounts raised under any other transaction having the commercial effect of a borrowing; or



(i)

(without double counting) any guarantee, indemnity or similar assurance for any of the items referred to in paragraphs (a) to (h) above.

"Cash" means, at any time:

(a)

cash at bank denominated in sterling, dollars, euro or other currency freely convertible into dollars and freely transferable and credited to an account in the name of a member of the Group with a reputable financial institution and to which a member of the Group is alone beneficially entitled and for so long as that cash is repayable on demand, provided that:



(i)

repayment of that cash is not contingent on the prior discharge of any other indebtedness of any Group member or of any other person whatsoever or on the satisfaction of any other condition;



(ii)

there is no Security over that cash except Security created or constituted pursuant to a Finance Document or Security securing obligations of a member of the Group granted in favour of another member of the Group; and



(iii)

such cash is freely and immediately available and convertible into dollars to be applied in repayment or prepayment of the Borrowings; and



(b)

to the extent the relevant indebtedness is included in Borrowings, cash collateral provided for such indebtedness up to a maximum amount equal to the principal amount of such indebtedness.

"Cash Equivalent Investments" means:

(a)

debt securities denominated in sterling, dollars, euro or other currency freely convertible into dollars issued by, or unconditionally guaranteed by, the United Kingdom or the United States of America which are not convertible into any other form of security and having not more than three months to final maturity;



(b)

debt securities denominated in sterling, dollars or euro or other currency freely convertible into dollars which are not convertible into any other form of security, and having not more than three months to final maturity, at all times rated P-1 (Moody's Investor Services Inc.) or A-1 (Standard & Poor's Corporation) and which are not issued or guaranteed by any member of the Group;



(c)

certificates of deposit denominated in sterling, dollars or euro or other currency freely convertible into dollars issued by, and acceptances by, banking institutions authorised under applicable legislation of the United Kingdom rated P-1 (Moody's Investor Services Inc.) or A-1 (Standard & Poor's Corporation); and



(d)

other securities (if any) approved in writing by the Agent,

provided that:

(i)

there is no Security over the investments referred to in paragraphs (a) to (d) above except Security created or constituted pursuant to a Finance Document or Security

61

securing obligations of a member of the Group granted in favour of another member of the Group; and

(ii)

cash proceeds of the investments referred to in paragraphs (a) to (d) above are freely and immediately available and convertible into dollars to be applied in repayment or prepayment of the Borrowings.

"EBITDA" means, in respect of any Relevant Period, consolidated operating income for such period (after giving effect to the following adjustments, if applicable):

(a)

before deducting any corporation tax or other Taxes on income, profits or gains;



(b)

before deducting interest payable and before adding interest receivable;



(c)

before deducting unusual or non-recurring losses or charges, provided that any accruals or reserves in the ordinary course of business shall be excluded (and, for the avoidance of doubt, up-front milestone and licensing payments which have been charged to the income statement on initial recognition under US GAAP shall constitute unusual or non-recurring losses or charges and accordingly shall not be deducted from EBITDA);



(d)

before adding extraordinary gains and non-cash gains;



(e)

after deducting the amount of net profit (or adding back the amount of net loss) of any Group company (other than the Parent Company) which is attributable to any third party (other than another Group company) which is a shareholder in that Group company;



(f)

after adding back the amount of any loss and after deducting the amount of any gain against book value arising on a disposal of any asset (other than stock disposed of in the ordinary course of trading);



(g)

after deducting any income (to the extent not received in cash) and adding back any loss from any associate or joint venture or any other companies in which a Group company has a minority interest;



(h)

before deducting any depreciation or amortisation;



(i)

before deducting any distributions;



(j)

before deducting any non-cash write-offs of in-process research and development, goodwill, non-cash stock compensation charges, non-cash stock revaluation charges arising on an acquisition and non-cash write-offs of any investments, intellectual property or fixed assets;



(k)

before adding or deducting any changes in the fair value of contingent consideration; and



(l)

before deducting any Acquisition Costs.

For the purposes of paragraph (A) of Clause 23.2 (Financial condition) only, EBITDA shall be adjusted, at any time, on a pro-forma basis to include businesses or assets acquired in the period and exclude businesses or assets disposed of in the period.

"Liquid Investments" means at any time:

(a)

any investment in marketable debt obligations for which a recognised trading market exists and which are not convertible or exchangeable to any other security provided that:



(i)

each obligation has a credit rating of either A or A-1 or higher by Standard & Poor's Corporation (or in each case the equivalent rating including the equivalent money market fund rating by Standard & Poor's Corporation) or A2 or P-1 or higher by Moody's Investor Services Inc. (or in each case the equivalent rating including the

62

equivalent money market fund rating by Moody's Investor Services Inc.) and further provided that no more than 25 per cent. of all such investments shall be rated A and A-1 by Standard & Poor's Corporation (and in each case the equivalent rating including the equivalent money market fund rating by Standard & Poor's Corporation) and A2 and P-1 by Moody's Investor Services Inc. (and in each case the equivalent rating including the equivalent money market fund rating by Moody's Investor Services Inc.);

(ii)

each obligation is beneficially owned by a member of the Group;



(iii)

no obligation is issued by or guaranteed by a member of the Group; and



(iv)

there is no Security over such obligation save pursuant to the Finance Documents or Security securing obligations of a member of the Group granted in favour of another member of the Group; and



(b)

any investment accessible within 30 days in money market funds which have a credit rating of either A-1 or higher by Standard & Poor's Corporation (or in each case the equivalent rating including the equivalent money market fund rating by Standard & Poor's Corporation) or P-1 or higher by Moody's Investor Services Inc. (or in each case the equivalent rating including the equivalent money market fund rating by Moody's Investor Services Inc.) or Rule 2a7 Money Market Funds as defined in the US Investment Company Act 1940 provided that:



(i)

such investment is beneficially owned by a member of the Group; and



(ii)

there is no Security over such investment save pursuant to the Finance Documents or Security securing obligations of a member of the Group granted in favour of another member of the Group,

provided that the cash proceeds of the investments referred to in paragraphs (a) and (b) above, either through sale or redemption, are freely and immediately available and convertible into dollars to be applied in repayment or prepayment of the Borrowings.

"Net Debt" means, at any time, the aggregate consolidated Borrowings of the Group from sources external to the Group, less all Cash and Cash Equivalent Investments of the Group and the then mark to market value of Liquid Investments.

"Net Interest" means, in respect of any Relevant Period, the sum of (i) the amount of interest and similar charges payable in respect of Borrowings by the Group during such period less (ii) the amount of interest received or receivable and any similar income of the Group during such period excluding any payment or amortisation of front end or one off specific upfront arrangement fees payable under or in connection with this Agreement or any Fee Letter or under any other agreement or fee letter relating to any other Borrowings incurred for the purposes of an acquisition. For the purposes of this definition:

(a)

prior to the delivery of a valuation judgment by the relevant court in connection with any "appraisal" or similar proceedings brought by former common stockholders or shareholders of any company acquired by any member of the Group after the date of this Agreement, the amount of interest and similar charges payable by the Group in respect of any potential award in such proceedings shall be deemed to be as recorded in the Group's financial statements for the Relevant Period; and



(b)

following the delivery of a valuation judgment by the relevant court in connection with the proceedings described in paragraph (a) above, and following any revised valuation judgment on appeal from such proceedings, the amount of interest and similar charges

63

payable by the Group in respect of the court's valuation shall be as determined by the court, but allocated on a pro rata basis from (and including) the calendar month in which the relevant acquisition is consummated to (but excluding) the calendar month in which such interest or similar charges are actually paid.

"Relevant Period" means each period of twelve months ending on the last day of the Parent Company's financial year and each period of twelve months ending on the last day of the first half of the Parent Company's financial year, with the first such period ending on 30 June 2016.

23.2 Financial condition

        The Parent Company shall ensure that:

(A)

the ratio of Net Debt to EBITDA of the Group in respect of the most recently ended Relevant Period (the "Leverage Ratio") shall not at any time exceed 3.5:1, except that, following the Acquisition or (except in the case of an In-licensing Acquisition (as defined below)) any other acquisition by the Group for a consideration which includes a cash element of at least US$ 250,000,000, the Parent Company may elect:



(i)

in respect of the Relevant Period in which the Acquisition or such other acquisition was completed, to increase the maximum allowable Leverage Ratio to 5.5:1;



(ii)

in respect of the first Relevant Period immediately following the Relevant Period referred to in paragraph (i) above, to increase the maximum allowable Leverage Ratio to 5.0:1; and



(iii)

in respect of the second Relevant Period immediately following the Relevant Period referred to in paragraph (i) above, to increase the maximum allowable Leverage Ratio to 4.5:1.

The election must be made by no later than the date on which the Compliance Certificate for the first Relevant Period to which that election relates is delivered pursuant to Clause 22.2 (Compliance Certificate) (or the date on which such Compliance Certificate was due to have been delivered if earlier). For the avoidance of doubt, an "acquisition" includes an in-licensing agreement under which the Group acquires certain rights to products and projects (an "In-licensing Acquisition") which would require the Group to pay licence fees, milestone payments or other similar fees or payments ("In-licensing Fees and Payments"). Notwithstanding the above, where the acquisition is an In-licensing Acquisition the Parent Company may elect to increase the maximum allowable Leverage Ratio as set out above where the aggregate In-licensing Fees and Payments in respect of that In-licensing Acquisition totals at least US$ 250,000,000 in any one Relevant Period. The increase in the maximum allowable Leverage Ratio shall apply to the Relevant Period in which such In-licensing Fees and Payments were paid and the subsequent Relevant Periods as set out above and the election must be made by no later than the date on which the Compliance Certificate for the first Relevant Period to which that election relates is delivered pursuant to Clause 22.2 (Compliance Certificate) (or the date on which such Compliance Certificate was due to have been delivered if earlier). Only one election under this paragraph (A) may be made; and

(B)

the ratio of EBITDA of the Group to Net Interest in respect of the most recently ended Relevant Period shall not be less than 4.0:1.

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23.3 Financial testing

(A)

The financial covenants set out in Clause 23.2 (Financial condition) shall be tested by reference to each of the financial statements and/or each Compliance Certificate delivered pursuant to Clause 22.2 (Compliance Certificate).



(B)

If paragraph (D) of Clause 22.3 (Requirements as to financial statements) applies (and for so long as no amendments to the contrary have been agreed pursuant to paragraph (D) of Clause 22.3 (Requirements as to financial statements)), then the financial covenants set out in Clause 23.2 (Financial condition) shall be tested by reference to the relevant financial statements as adjusted pursuant to paragraph (C) of Clause 22.3 (Requirements as to financial statements) (and/or relevant Compliance Certificate delivered in accordance with Clause 22.2 (Compliance Certificate)) to reflect the basis upon which the Original Financial Statements were prepared and, to the extent relevant, any other information delivered to the Agent in accordance with paragraph (C) of Clause 22.3 (Requirements as to financial statements).

24.   GENERAL UNDERTAKINGS

        The undertakings in this Clause 24 (General undertakings) remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

24.1 Authorisations

        Each Obligor shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability and admissibility in evidence in its jurisdiction of incorporation of any Finance Document subject to any applicable bankruptcy, insolvency, reorganisation, moratorium and other similar laws or legal procedures affecting the enforceability of creditors' rights generally and any other reservations set out in any of the legal opinions listed in Part I(A) of Schedule 2 (Conditions precedent to initial Utilisation) or delivered in connection with an Obligor's accession to this Agreement.

24.2 Compliance with laws

        Each Obligor shall comply in all respects with all laws to which it may be subject, if failure so to comply would have a Material Adverse Effect.

24.3 Negative pledge

(A)

No Obligor shall (and the Parent Company shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.



(B)

No Obligor shall (and the Parent Company shall ensure that no other member of the Group will):



(i)

sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;



(ii)

sell, transfer or otherwise dispose of any of its receivables on recourse terms;



(iii)

enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or



(iv)

enter into any other preferential arrangement having a similar effect,

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

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(C)

Paragraphs (A) and (B) above do not apply to:



(i)

any Security (or transaction ("Quasi-Security") described in paragraph (B) above) created with the prior written consent of the Majority Lenders;



(ii)

any Security or Quasi-Security listed in Schedule 9 (Existing Security) except to the extent the principal amount secured by that Security exceeds the amount stated in that Schedule;



(iii)

any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting or setting-off debit and credit balances;



(iv)

any lien arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by any member of the Group;



(v)

any future title retention provisions to which a member of the Group is subject entered into in the ordinary course of trading;



(vi)

any netting or set-off arrangement entered into by any member of the Group under any treasury transaction entered into in the ordinary course of business;



(vii)

any Security or Quasi-Security over or affecting any asset acquired by a member of the Group after the date of this Agreement if:



(a)

the Security or Quasi-Security was not created in contemplation of the acquisition of that asset by a member of the Group;



(b)

the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and



(c)

the Security or Quasi-Security is removed or discharged within six months of the date of acquisition of such asset;



(viii)

any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Group, if:



(a)

the Security or Quasi-Security was not created in contemplation of the acquisition of that company;



(b)

the principal amount secured has not increased in contemplation of or since the acquisition of that company; and



(c)

the Security or Quasi-Security is removed or discharged within six months of that company becoming a member of the Group;



(ix)

any Security entered into pursuant to any Finance Document;



(x)

any Security or Quasi-Security created in connection with a Permitted Securitisation;



(xi)

any Security or Quasi-Security created or subsisting over cash or Cash Equivalent Investments (determined as if proviso (i) of the definition of "Cash Equivalent Investments" did not apply) deposited in an escrow account or subject to escrow or similar agreements or arrangements in connection with any acquisition of an undertaking or company by a member of the Group after the date of this Agreement provided that such requirements for escrow arrangements are entered into (a) on an arm's length basis and (b) such that the Security or Quasi-Security is removed or discharged within one