AMENDMENT NO. 2 AND WAIVER TO SENIOR UNSECURED BRIDGE CREDIT AGREEMENT

AMENDMENT NO. 2 AND WAIVER TO
SENIOR UNSECURED BRIDGE CREDIT AGREEMENT

 

AMENDMENT NO. 2 AND WAIVER TO SENIOR UNSECURED BRIDGE CREDIT AGREEMENT (this “Amendment”), dated as of October 24,  2016, is entered into by and among AVNET, INC., a New York corporation  (the “Borrower”), BANK OF AMERICA, N.A., as administrative agent (in such capacity,  the “Administrative Agent”), and the Lenders.  Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement (as defined below).

PRELIMINARY STATEMENTS:

SECTION 1.Amendments to Credit Agreement. The Credit Agreement is, effective as of the Amendment No. 2 Effective Date (as defined below), hereby amended  to delete the struck text (indicated textually in the same manner as the following example: struck text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the text of the Credit Agreement attached as Exhibit A hereto, except that any Schedule, Exhibit or other attachment to the Credit Agreement not amended pursuant to the terms of this Amendment or otherwise included as part of said Exhibit A shall remain in effect without any amendment or other modification thereto.

 

SECTION 2Waiver.  Effective as of the Amendment No. 2 Effective Date, the Lenders hereby agree, with respect to the termination of the Tranche A-1 Commitments contemplated by the Borrower, to waive the five Business Day notice period required by Section 2.04(a) of the Credit Agreement, such that the Tranche A-1 Commitments are terminated effective as of October 24, 2016.

SECTION 3.Reference to and Effect on the Loan Documents.    

 

SECTION 4.Conditions of Effectiveness.    This Amendment shall become effective as of the first date upon which each of the conditions precedent set forth below in this Section 4 shall be satisfied or waived (such date, the “Amendment No. 2 Effective Date”):

 

 

SECTION 5.Representations and Warranties.    The Borrower hereby represents and warrants, as of the Amendment No. 2 Effective Date, that:

(a)The execution, delivery and performance by the Borrower of this Amendment have been duly authorized by all necessary corporate or other organizational action, and do not and, in the case of performance by the Borrower of the Credit Agreement as amended hereby, will not (A) contravene the terms of any of the Borrower’s Organization Documents; (B) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which the Borrower is a party or to which the Borrower or the properties of the Borrower or any of its Subsidiaries is subject or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its property is subject; or (C) violate any Law in any material respect, except, in the case of immediately preceding clauses (B) and (C), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.  The Borrower and each Subsidiary thereof is in compliance with all Contractual Obligations referred to in clause (B)(i), except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

(b)This Amendment has been duly executed and delivered by the Borrower.  This Amendment and the Credit Agreement as amended hereby constitute a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with their terms.

SECTION 6.Execution in Counterparts.    This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  The Credit Agreement, as amended hereby, constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Amendment.

 

SECTION 7.Governing Law. Jurisdiction. Waiver of Jury Trial. This Amendment shall be governed by, and construed in accordance with,  the law of the  State of New York.  The provisions of Section 10.14(b), (c) and (d) and Section 10.15 of the Credit Agreement are hereby incorporated mutatis mutandis.

 

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to Senior Unsecured Bridge Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT A

 

AMENDMENTS TO THE SENIOR UNSECURED BRIDGE Credit Agreement

 

 

[Attached On Following Pages]

 

 

 

SENIOR UNSECURED BRIDGE CREDIT AGREEMENT

Dated as of July 27, 2016,  

among

AVNET, INC.

as the Borrower,

BANK OF AMERICA, N.A.,
as Administrative Agent,

and

The Other Lenders Party Hereto

▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
as
Sole Lead Arranger and Sole Bookrunner

 

 

 

 

 

 

SCHEDULES

1.01     Existing Subsidiary Indebtedness

2.01Commitments and Applicable Percentages

5.06Litigation

5.13Subsidiaries and Other Equity Investments

7.01Existing Liens

7.03Existing Indebtedness

10.02Administrative Agent’s Office; Certain Addresses for Notices

EXHIBITS

Form of

ALoan Notice

BNote

CCompliance Certificate

D-1Assignment and Assumption

D-2Administrative Questionnaire

E-1Form of Opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP

E-2Form of Opinion of Vice President and Corporate Secretary of the Borrower

FForms of U.S. Tax Compliance Certificates

 

 

 

SENIOR UNSECURED BRIDGE CREDIT AGREEMENT

This SENIOR UNSECURED BRIDGE CREDIT AGREEMENT (“Agreement”) is entered into as of July 27, 2016, among AVNET, INC., a New York corporation (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent.

WHEREAS, the Borrower will make an announcement under Rule 2.7 (the “2.7 Announcement”) of the City Code on Takeovers and Mergers in the United Kingdom (the “City Code”), announcing its firm intention to make an offer to acquire (the “Target Acquisition”) the entire issued and to be issued share capital of Premier Farnell plc, a public limited company organized under the laws of England and Wales (the “Target”).

WHEREAS, in connection with the Target Acquisition, the Borrower intends to finance the cash consideration and any fees and expenses related to the Target Acquisition with the proceeds of up to £707.0 million and $250.0 million from borrowings under the commitments hereunder.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

“Acquisition” means the acquisition of (i) a controlling equity or other ownership interest in another Person (including upon the exercise of an option, warrant or convertible or similar type security to acquire such a controlling interest), whether by purchase of such equity or other ownership interest or upon exercise of an option or warrant for, or conversion of securities into, such equity or other ownership interest, or (ii) assets of another Person (whether by purchase, merger or otherwise) which constitute all or substantially all of the assets of such Person or of a line or lines of business conducted by such Person.

“Adjusted Receivables Amount” means, as of any date of determination, the greater of (a) the aggregate net book value of all Excluded Receivables minus $75,000,000, and (b) $0.

“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit D-2 or any other form approved by the Administrative Agent.

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Aggregate Commitments” means the Commitments of all the Lenders. 

“Agreement” has the meaning specified in the introductory paragraph.

“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments (or of the Tranche A-1 Commitments, the Tranche A-2 Commitments and/or the Tranche B Commitments, as applicable) or total Loans (or total Tranche A-1 Loans, Tranche A-2 Loans and/or Tranche B Loans, as applicable) represented by such Lender’s Commitment (or Tranche ▇-▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇-▇ Commitment and/or Tranche B Commitment, as applicable)  or Loan (or Tranche A-1 Loan, Tranche A-2 Loan and/or Tranche B Loan, as applicable)  at such time, subject to adjustment as provided in Section 2.12.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“Applicable Rate” means, from time to time, the following percentages per annum, based upon the Debt Rating as set forth below:

 

 

“Crossover Rating” means, as of any date of determination, one Investment Grade Rating and one Debt Rating that is not an Investment Grade Rating.

“Debt Rating” means, as of any date of determination, the rating as determined by either S&P or ▇▇▇▇▇’▇ (collectively, the “Debt Ratings”) of the Borrower’s non-credit-enhanced, senior unsecured long-term debt; provided that (a) if a Debt Rating is issued by each of the foregoing rating agencies, then the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 4 being the lowest); (b) if the Borrower has only one Debt Rating, the Pricing Level of such Debt Level shall apply; and (c) if the Borrower does not have any Debt Rating, Pricing Level 4 shall apply.

“Investment Grade Rating” means, as of any date of determination, the Debt Rating of BBB- or better from S&P and the Debt Rating of Baa3 or better from ▇▇▇▇▇’▇.

“Non-Investment Grade Rating” means, as of any date of determination, a Debt Rating that is not an Investment Grade Rating.

Initially, the Applicable Rate shall be determined based upon the Debt Ratings in effect on the  Closing Date or the Tranche B Closing Date, as applicable, each of which shall be specified in the certificate delivered pursuant to Section 4.02(I)(d) or Section 4.02(III)(c)(D), as applicable.  Thereafter, each change in the Applicable Rate resulting from a publicly announced change in any Debt Rating shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Arranger” means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), in its capacity as sole lead arranger and sole bookrunner.

“Asset Sale” means any non-ordinary course sale, transfer or other disposition of assets or series of related non-ordinary course sales, transfers or other dispositions by the Borrower or any of its Material Subsidiaries other than any sale, transfer or disposition (i) by the Borrower to any of its Subsidiaries or by any Subsidiary of the Borrower to the Borrower or any other Subsidiary of the Borrower, (ii) of accounts receivable under any Permitted Securitization Facility and (iii) of worn-out or obsolete assets.

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by

Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit D-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

“Attributable Indebtedness” means, on any date:

(a)in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP;

(b)in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease; and

(c)in respect of any asset securitization transaction of any Person, (i) the actual amount of any unrecovered investment of purchasers or transferees of assets so transferred, plus (ii) in the case of any other recourse, repurchase, or debt obligation described in clause (a) of the definition of “Off-Balance Sheet Liabilities,” the capitalized amount of such obligation that would appear on a balance sheet of such Person prepared on such date in accordance with GAAP if such sale or transfer or assets were accounted for as a secured loan.

“Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended June 29, 2015, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bank of America” means Bank of America, N.A. and its successors.

“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurocurrency Rate plus 1.00%.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.    

“Base Rate Tranche B Loan” means a Tranche B Loan that bears interest based on the Base Rate.  For the avoidance of doubt, Tranche A Loans shall only bear interest based on the Eurocurrency Rate.

“Borrower” has the meaning specified in the introductory paragraph hereto.

“Borrower Materials” has the meaning specified in Section 6.02.

“Borrowing” means a borrowing consisting of simultaneous Loans and having the same Interest Period made by each of the Lenders pursuant to Section 2.01.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and in New York and:

(a)if such day relates to any interest rate settings as to a Eurocurrency Rate Tranche B Loan, any fundings, disbursements, settlements and payments in respect of any such Eurocurrency Rate Tranche B Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Tranche B Loan, means any London Banking Day;

(b)if such day relates to any interest rate settings as to a Tranche A Loan, means any such day on which dealings in deposits in Sterling are conducted by and between banks in the London interbank market for Sterling.

“Cash Confirmation Advisor” means ▇▇▇▇▇▇▇ ▇▇▇▇▇ International.

“Certain Funds Conditions” means each of the following:

“Certain Funds Covenant” means, in each case, solely in relation to the Borrower (and excluding the Target and its Subsidiaries and excluding any covenant or procurement obligation with respect to the Target and its Subsidiaries), the covenants set forth in Sections 6.05(a),  6.12(a),  6.12(b),  6.12(c),  6.12(e) (with respect to delivery of any material Offer Documents or material Scheme Documents only, as applicable), Sections  7.01 (solely to the extent of Liens voluntarily created by the Borrower), 7.03,  7.04,  7.05,  7.06(b) (other than with respect to 7.06(b)(i), to the extent that such breaches, taken as a whole, would not reasonably be expected to materially and

adversely affect the Borrower’s ability to consummate the Target Acquisition), 7.09(b),  7.11 (other than in respect of the Target Acquisition) and 7.16 (other than clause (c) thereof).

“Certain Funds Default” means any continuing Event of Default, in each case relating to the Borrower (and excluding the Target and its Subsidiaries and excluding any Event of Default or procurement obligation with respect to the Target and its Subsidiaries), arising under Sections 8.01(a)(i),  8.01(a)(ii),  8.01(b),  8.01(c) (in the case of clauses (b) and (c) of Section 8.01, in relation to a Certain Funds Covenant only), 8.01(d) (in relation to a Certain Funds Representation only), 8.01(f),  8.01(g) and 8.01(j) (in the case of the Borrower contesting the validity or enforceability of a Loan Document, denying its obligations or liabilities thereunder, or purporting to revoke, terminate or rescind a Loan Document in circumstances that would otherwise be a breach of Section 8.01(j), only to the extent that such action is unambiguous and made in writing).

“Certain Funds Period” means the period from and including the Effective Date and ending on the earliest of:

“Certain Funds Representations” means, solely with respect to statements made in relation to the Borrower (and, for the avoidance of doubt, excluding the Target and its Subsidiaries and excluding any representation or procurement obligation with respect to the Target and its Subsidiaries), the representations and warranties set forth in (1) Sections 5.01(a),  5.01(b), (2) the first sentence of Section 5.02, (3) Sections 5.03,  5.04,  5.14 (insofar as it relates to a Tranche A Loan), 5.20 and 5.21(a) and (4) clause (x) of Section 5.21(b) (but only to the extent as it relates to compliance with respect to the use of proceeds of the Loans with the United States Foreign Corrupt Practices Act of 1977, the UK ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, and other similar anti-corruption legislation in other jurisdictions).

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” means an event or series of events by which:

(a)any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

(b)during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above

constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.

“City Code” has the meaning specified in the recitals.

“Clean-Up Period” has the meaning specified in Section 8.04.

“Closing Date” means the date after the Effective Date and on or prior to the end of the Certain Funds Period on which all of the applicable conditions precedent in Section 4.02 are satisfied or waived in accordance with Section 10.01 and all or a portion of the Loans are made to the Borrower; provided,  however, that the Tranche B Closing Date shall not constitute a Closing Date.

“Code” means the Internal Revenue Code of 1986.

“Commitments” means, collectively, the Tranche A Commitments and the Tranche B Commitments.

“Companies Act” means the Companies Act of 2006 of the United Kingdom, as amended.

“Companies House” means the office for company administration and registrations in England and Wales operated by the Registrar of Companies.

“Compliance Certificate” means a certificate substantially in the form of Exhibit C.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following (to the extent deducted in calculating such Consolidated Net Income, without duplication):  (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) gains or losses related to the early extinguishment of notes, bonds or other fixed income obligations and (v) other non-cash or nonrecurring expenses of the Borrower and its Subsidiaries (including non-cash expenses consisting of compensation paid in the form of Equity Interests of the Borrower or its Subsidiaries and non-cash charges due to impairments recorded in such period in accordance with the Financial Accounting Standards Board’s Accounting Standards Codification 350), reducing such Consolidated Net Income and minus (b) all non-cash items increasing Consolidated Net Income for such period.

“Consolidated Funded Indebtedness” means, as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including such Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements

or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under letters of credit (including standby letters of credit), bankers’ acceptances, bank guaranties, surety bonds and similar instruments (other than, and without expanding this clause (c), commercial letters of credit and bankers’ acceptances incurred to support commercial or lease transactions, bid bonds, payment bonds and performance bonds arising in the ordinary course of business), in each case net of the amount of cash collateral securing such direct obligations, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in respect of capital leases, Synthetic Lease Obligations and other Off-Balance Sheet Liabilities, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a general partner or joint venturer, if, and to the extent that, the fair value of the assets of such partnership or joint venture is less than its probable liability in respect of its obligations, net of any right to contribution from other reasonably creditworthy Persons which the Borrower or such Subsidiary has in respect thereof, unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.

“Consolidated Interest Charges” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the sum, without duplication, of (a) consolidated interest expense determined in accordance with GAAP and (b) all implicit interest in connection with Synthetic Lease Obligations and other Off-Balance Sheet Liabilities minus (c) the amount of non-cash interest (including interest paid by the issuance of additional securities) included in the foregoing clause (a).

“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such date to (b) Consolidated Interest Charges for such period.

“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.

“Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding extraordinary gains but including extraordinary losses) for that period.

“Consolidated Tangible Net Worth” means, as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis, Shareholders’ Equity minus Intangible Assets on that date.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.

“Conversion Notice” means a written notice by the Borrower to the Administrative Agent that the Borrower intends to switch the Target Acquisition from a Scheme to an Offer (or vice versa).

“Cost of Acquisition” means, with respect to any Acquisition, as at the date of entering into any agreement therefor, the sum of the following (without duplication):  (a) the amount of any cash and fair market value of property (excluding capital stock, warrants or options to acquire capital stock of the Borrower and the unpaid principal amount of any debt instrument) given as consideration, (b) the amount (determined by using the face amount or the amount payable at maturity, whichever is greater) of any Indebtedness incurred, assumed, acquired or repaid by the Borrower or any Subsidiary in connection with such Acquisition, (c) all additional purchase price amounts in the form of earnouts and other contingent obligations that should be recorded on the balance sheet of the Borrower and its Subsidiaries in accordance with GAAP, (d) all amounts paid in respect of covenants not to compete or consulting agreements that should be recorded on financial statements of the Borrower and its Subsidiaries in accordance with GAAP, (e) the aggregate fair market value of all other consideration given by the Borrower or any Subsidiary in connection with such Acquisition, and (f) out-of-pocket transaction costs for the services and expenses of attorneys, accountants and other consultants incurred in effecting such transaction, and other similar transaction costs so incurred and capitalized in accordance with GAAP.

“Crossover Rating” has the meaning specified in the definition of Applicable Rate.

“Debt Issuance” means the issuance or incurrence of Indebtedness referred to in clause (a)  of the definition thereof by the Borrower or any of its Subsidiaries (other than equity-linked securities of the Borrower that are accorded any level of equity treatment by each of S&P and ▇▇▇▇▇’▇), including, for the avoidance of doubt, any issuance or incurrence of Indebtedness referred to in clause (a) of the definition thereof in connection with or to finance the Transactions (or refinance any such Indebtedness) whether or not issued and deposited in an escrow account, but excluding (i) Excluded Debt, (ii) the Loans and (iii) any trade, vendor, or customer-related financing in the ordinary course of business.

“Debt Rating” has the meaning specified in the definition of Applicable Rate.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means (a) when used with respect to Obligations, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus 2% per annum; provided, however, that with respect to a Tranche A Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) applicable to such Tranche A Loan plus 2% per annum.

“Defaulting Lender” means, subject to Section 2.12(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action;  provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.12(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower and each other Lender promptly following such determination.

“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.

“Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“Dollar” and “$” mean lawful money of the United States.

“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in Sterling, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Sterling.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Effective Date” has the meaning set forth in Section 4.01.  

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) and (v) subject to such consents, if any, as may be required under Section 10.06(b)(iii).

“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting and any hypothetical, synthetic or direct or indirect equivalent thereof, and whether or not such shares, warrants, options, rights or other interests, or any hypothetical, synthetic or direct or indirect equivalent thereof, are outstanding on any date of determination.

“Equity Issuance” means the issuance of Equity Interests of the Borrower or any of its Subsidiaries to any Person following the Effective Date, other than (i) by any Subsidiary of the Borrower to the Borrower or any other Subsidiary of the Borrower and (ii) pursuant to any employee equity compensation plan, employee benefit plan, stock option or stock purchase plan, management equity plans, or other similar benefit plans or compensation arrangements or accommodations for current or former directors, officers, employees or consultants of the Borrower or any of its Subsidiaries existing on the Effective Date or established thereafter in the ordinary course of business or pursuant to dividend reinvestment plans established for the benefit of the common stockholders of the Borrower.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan amendment as a termination, under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Eurocurrency Rate” means  with respect to any Borrowing:

(a)denominated in Dollars or Sterling, for any Interest Period with respect to a Tranche A Loan or a Eurocurrency Tranche B Loan, as applicable, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period and

(b)for any rate calculation with respect to a Base Rate Tranche B Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that day;

provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided,  further, that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and if the Eurocurrency Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement

“Eurocurrency Rate Tranche B Loan” means a Tranche B Loan that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate”. 

“Event of Default” has the meaning specified in Section 8.01.

“Excluded Debt” means (i) intercompany Indebtedness between or among the Borrower and any of its Subsidiaries, (ii) credit extensions under the Existing Credit Agreement and the Existing Securitization Facility, (iii) (x) credit extensions under any Indebtedness of any Subsidiary of the Borrower arising from cash pooling and related overdraft arrangements in the ordinary course of business  and (y) credit extensions under any Indebtedness of any Subsidiary of the Borrower set forth on Schedule 1.01 (for the avoidance of doubt, excluding debt securities and syndicated credit facilities) and any refinancing, renewal, refunding, extension or replacement thereof (in each case, except to the extent constituting Indebtedness of the Borrower (other than a Guarantee by the Borrower) and excluding debt securities and syndicated credit facilities) in an aggregate principal amount not to exceed the refinanced, renewed, refunded, extended or replaced funded amount thereof plus accrued and unpaid interest or premiums thereon and fees and expenses incurred in connection therewith plus (without duplication) an amount equal to any commitment unutilized thereunder and (iv) other Indebtedness (other than debt securities and syndicated credit facilities) not included in clauses (i),  (ii) and (iii) above in an outstanding aggregate principal amount not to exceed $150,000,000; provided,  further, in no event shall any

Indebtedness (other than credit extensions pursuant to immediately preceding clause (ii)) which gives effect (whether in whole or in part) to the refinancing, renewal, refunding, extension or replacement of the Borrower’s existing 6.625% Notes due 2016 constitute “Excluded Debt”.

“Excluded Receivables” means, as of any date of determination, all accounts receivable referred to in Item 1 of Schedule 7.01.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii),  (a)(iii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.

“Existing Credit Agreement” means that certain Credit Agreement dated as of July 9, 2014 among the Borrower, certain subsidiaries of the Borrower, the lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, the L/C Issuer and the Swing Line Lender.

“Existing Securitization Facility” means the account receivable securitization pursuant to the second amended and restated receivables purchase agreement dated as of August 26, 2010, as amended, among Avnet Receivables Corporation, the Borrower as servicer, the financial institutions party thereto as purchasers, and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA) as agent for the purchasers, as amended, restated, supplemented or otherwise modified from time to time, including any extensions, renewals, replacements and refinancings thereof; provided, that each such agreement (as amended, restated, supplemented or otherwise modified from time to time) or extension, renewal, replacement or refinancing, as the case may be, satisfies the requirements set forth in clause (b) of the definition of Permitted Securitization Facility.

“Existing Target Notes” means (i) the 5.2% Dollar Guaranteed Senior Notes payable 2017, (ii) the 4.4% Dollar Guaranteed Senior Notes payable 2018, (iii) the 4.8% Dollar Guaranteed Senior Notes payable 2021 and (iv) the 4.0% Dollar Guaranteed Senior Notes payable 2024.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not

materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471 (b) (1) of the Code.

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

“Fee Letter” means the Fee Letter dated as of the date hereof, between the Borrower and the Arranger, as amended, modified, restated or otherwise supplemented from time to time.

“Financing Transactions” means the execution, delivery and performance by the Borrower of this Agreement and the borrowings of Loans by the Borrower.

“Foreign Lender” means any Lender that is not a U.S. Person.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to

government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a corresponding meaning.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“HMT” has the meaning set forth in the definition of “Sanction(s)”.

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a)all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b)all direct or contingent obligations of such Person arising under letters of credit (including standby letters of credit), bankers’ acceptances, bank guaranties, surety bonds and similar instruments (other than commercial letters of credit and bankers’ acceptances incurred to support commercial transactions, bid bonds, payment bonds and performance bonds arising in the ordinary course of business);

(c)net obligations of such Person under any Swap Contract;

(d)all obligations of such Person to pay the deferred purchase price of property or services (other than current trade accounts payable in the ordinary course of business);

(e)indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f)capital leases, Synthetic Lease Obligations and other Off-Balance Sheet Liabilities;

(g)all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(h)all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, if, and to the extent that, the fair value of the assets of such partnership or joint venture is less than its probable liability in respect of its obligations, net of any right to contribution from other reasonably creditworthy Persons which the Borrower or such Subsidiary has in respect thereof,  unless such Indebtedness is expressly made non-recourse to such Person.  The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.  The amount of any capital lease, Synthetic Lease Obligation or other Off-Balance Sheet Liability as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. 

Notwithstanding the foregoing, for purposes of this Agreement, the term Indebtedness shall not include any liability of the Borrower or a Subsidiary under any deferred compensation plan or similar arrangement covering employees or members of the board of directors of the Borrower.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Indemnitees” has the meaning specified in Section 10.04(b).

“Information” has the meaning specified in Section 10.07.

“Intangible Assets” means assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs.

“Inter-Company Indebtedness” has the meaning specified in Section 7.03(j).

“Interest Payment Date” means (a) as to any Loan other than a Base Rate Tranche B Loan, the last day of each Interest Period applicable to such Loan and the relevant Maturity Date; provided, however, that if any Interest Period for any Tranche A Loan or any Eurocurrency Tranche B Loan, as applicable, exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates and (b) as to any Base Rate Tranche B Loan, the last Business Day of each March, June, September and December and the Tranche B Maturity Date.

“Interest Period” means, as to each Tranche A Loan and each Eurocurrency Rate Tranche B Loan, the period commencing on the date such Loan is disbursed or converted to (solely in the case of Eurocurrency Rate Tranche B Loans), or continued and ending (a) in the case of any Eurocurrency Rate Tranche B Loan, on the date one, two, three or six months thereafter or (if the Administrative Agent determines that such Interest Period is available) seven or fourteen days thereafter or (b) as to any Tranche A Loan, on the date one, two, or three months thereafter, in each case subject to availability and as selected by the Borrower in its Loan Notice; provided that:

(i)any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(ii)any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii)no Interest Period shall extend beyond the relevant Maturity Date.

“Investment Grade Rating” has the meaning specified in the definition of Applicable Rate.

“IP Rights” has the meaning specified in Section 5.17.

“IRS” means the United States Internal Revenue Service.

“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities (including ERISA and Environmental Laws), including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“Lender” has the meaning specified in the introductory paragraph hereto.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate.  Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.

“LIBOR” has the meaning specified in the definition of Eurocurrency Rate.

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

“Loan Documents” means this Agreement, each Note and the Fee Letter.

“Loan Notice” means a notice of (a) a Borrowing or (b) a conversion (solely in the case of any Tranche B Loan) or continuation of Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

“Loans” means collectively, the Tranche A Loans and the Tranche B Loans.

“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties or condition (financial or otherwise) of the Borrower; (b) a material impairment of the ability of the Borrower to perform its obligations under the Loan Documents; (c) a material adverse effect upon the rights or remedies of the Administrative Agent or any Lender under the Loan Documents; or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document.

“Material Subsidiary” means, at any time, any Subsidiary which had total revenues in the four fiscal quarter period most recently ended in excess of 5% of the total revenues of the Borrower and its Subsidiaries on a consolidated basis.

“Maturity Date” means the Tranche A-1 Maturity Date, the Tranche A-2 Maturity Date or the Tranche B Maturity Date, as applicable; provided,  however, that if such date is not a Business Day, the applicable Maturity Date shall be the immediately preceding Business Day.

“Minimum Acceptance Level” means receipt of valid acceptances (which have not been withdrawn) in respect of shares in the Target such that following acquisition of such shares,

the Borrower will hold not less than 75% (or such lesser percentage (but in no event less than 50.1%) as elected by the Borrower after, to the extent necessary, consultation with the Panel) of each class of shares in the Target on a fully diluted basis.

“MNPI Information” has the meaning specified in Section 6.02.

“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc. and any successor thereto.

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

“Net Cash Proceeds” means the proceeds actually received by the Borrower or any of its Subsidiaries in the form of cash or cash equivalents (it being understood that cash equivalents will not include Equity Interests) from any Debt Issuance, Equity Issuance or Asset Sale or, in the case of any Recovery Event, any insurance proceeds or condemnation awards in respect of such Recovery Event, in each case net of (i) brokers’, investment bankers’ and advisors’ (including legal, accountants, consultants and financial advisors) fees and other discounts, commissions, placement fees and other fees, costs and expenses incurred in connection with any such transaction (provided that, for purposes of calculating the Net Cash Proceeds from any Debt Issuance issued and deposited into an escrow account, the Net Cash Proceeds shall be net of a reasonable amount of fees, costs and expenses estimated in good faith by the Borrower to be deducted from the proceeds deposited into such escrow account upon release from escrow) and (ii) in the case of any Asset Sale or Recovery Event, (A) amounts required to be applied to the repayment of any Indebtedness (or other obligations) secured by a Lien on an asset which is the subject of such Asset Sale or Recovery Event, (B) Taxes paid or reasonably estimated to be payable as a result thereof, (C) the amount of any reserves established to fund contingent liabilities reasonably estimated to be payable as a result thereof (provided that, upon any termination of such reserves, all such amounts not paid out in connection therewith shall be deemed to be “Net Cash Proceeds” of such Asset Sale), (D) proceeds of any Asset Sale or Recovery Event by Foreign Subsidiaries to the extent the repatriation of such proceeds to the United States is prohibited or delayed by applicable local law or would in the reasonable judgment of the Borrower have a materially adverse tax consequence (provided that upon the cessation of such delay, the proceeds subject to such delay shall be deemed to be “Net Cash Proceeds” of such Asset Sale or Recovery Event), and (E) the amount of any short-term liabilities directly associated with such asset and retained by the Borrower or any of its Subsidiaries; provided that no proceeds of an Asset Sale or Recovery Event shall constitute Net Cash Proceeds except to the extent in excess of $100,000,000 in the aggregate for all Asset Sales and Recovery Events. Any such proceeds received by a Subsidiary that is not wholly owned shall only be “Net Cash Proceeds” to the extent that the Borrower may cause such proceeds to be distributed to it or to a wholly owned Subsidiary under applicable law and subject to any contractual restriction binding on or affecting such Subsidiary.

“Non-Investment Grade Rating” has the meaning specified in the definition of Applicable Rate.

“Non-Material Subsidiary” means any Subsidiary which is not a Material Subsidiary.

“Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender to the Borrower, substantially in the form of Exhibit B.

“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Borrower arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Borrower or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“Offer” means a contractual takeover offer within the meaning of Section 974 of the Companies Act made by the Borrower to effect the Target Acquisition (as that offer may be amended, added to, revised, renewed or waived in a manner permitted by this Agreement).

“Offer Documents” means any offer document sent by the Borrower to the shareholders of the Target in respect of the Offer (along with any revision to the Offer) or any document to reflect a change from a Scheme to an Offer and any other document designated as such by the Borrower and the Arranger.

“Offer Press Release” means the press release announcing, in compliance with Rule 2.7 of the City Code, a firm intention to make the Offer, which shall be consistent in all material respects with the press release provided to the Administrative Agent pursuant to Section 4.01(c).

“Offer Unconditional Date” means the date on which the Offer becomes or is declared unconditional in all respects.

“Off-Balance Sheet Liabilities” means, with respect to any Person as of any date of determination thereof, without duplication and to the extent not included as a liability on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP:  (a) with respect to any asset securitization transaction (including any accounts receivable purchase facility), the unrecovered investment of purchasers or transferees of assets so transferred and the principal amount of any recourse, repurchase or debt obligations incurred in connection therewith; and (b) the monetary obligations under any financing lease or so-called “synthetic,” tax retention or off-balance sheet lease transaction which, upon the application of any Debtor Relief Law to such Person or any of its Subsidiaries, would be characterized as indebtedness.

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).

“Outstanding Amount” means with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Loans occurring on such date.

“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (b) with respect to any amount denominated in Sterling, the rate of interest per annum at which overnight deposits in Sterling, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable London interbank market for Sterling to major banks in such interbank market.

“Panel” means the Panel on Takeovers and Mergers in the United Kingdom.

“Participant” has the meaning specified in Section 10.06(d).

“Participant Register” has the meaning specified in Section 10.06(e).

“PATRIOT Act” has the meaning specified in Section 10.17.

“PBGC” means the Pension Benefit Guaranty Corporation, and any successor entity performing similar functions with respect to ERISA.

“Pension Act” means the Pension Protection Act of 2006.

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

“Permitted Acquisition” means any Acquisition that is permitted by the terms of Section 7.11.

“Permitted Business” means any type of business in which the Borrower and its Subsidiaries were engaged on the Target Acquisition Closing Date and any business reasonably related or incidental thereto.    

“Permitted Securitization Facilities” means, collectively, (a) the Existing Securitization Facility and (b) any other account receivable securitization facility so long as the Indebtedness thereunder and other payment obligations with respect thereto are nonrecourse to the Borrower and its Subsidiaries (other than any Special Purpose Finance Subsidiary), other than limited recourse provisions that are customary for transactions of such type and do not have the effect of Guaranteeing the repayment of any such Indebtedness or limiting the loss or credit risk of lenders or purchasers with respect to payment or performance by the obligors of the accounts receivable so transferred; provided, that (i) the aggregate outstanding Attributable Indebtedness under the Existing Securitization Facility and any other account receivable securitization facilities described in clause (b) plus (ii) the Adjusted Receivables Amount, shall not at any time exceed the greater of (x) $800,000,000, and (y) 35% of the aggregate net book value of all accounts receivable of the Borrower and its Subsidiaries (including those accounts receivable subject to the Existing Securitization Facility or any other account receivable securitization facilities described in clause (b)).

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for U.S.-based employees of the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.

“Platform” has the meaning specified in Section 6.02.

“Press Release” means (in relation to the Offer), the Offer Press Release or (in relation to the Scheme), the Scheme Press Release.

“Public Lender” has the meaning specified in Section 6.02.

“Qualifying Term Loan Facility” means a term loan facility (whether the borrower thereunder is the Borrower or a Subsidiary of the Borrower), the proceeds of which will be applied to pay a portion of the cash consideration payable in connection with the Target Acquisition, Transaction Costs and/or to refinance the Loans made hereunder and which is subject to conditions precedent to funding and limitations on assignments prior to the Closing Date (collectively, the “certain funds conditionality provisions”) that are no less favorable (subject to the immediately succeeding proviso) to the Borrower or the borrower under such Qualifying Term Loan Facility than the conditions precedent to the funding of the Loans and the limitations on assignments prior to the Closing Date set forth herein, as reasonably determined by the Borrower (provided that it is understood and agreed that the certain funds conditionality provisions shall be permitted to be modified to be expanded to also include the Borrower to the extent it is a parent guarantor thereunder, as well as the borrower(s) under such term loan facility, and any other guarantor (if any) thereunder).

“Rate Determination Date” means two (2) Business Days prior to the commencement of an Interest Period (or such other day as is generally treated as the rate fixing day by market practice in the applicable interbank market, as determined by the Administrative Agent); provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such other day as otherwise reasonably determined by the Administrative Agent.

“Receiving Agent” means the receiving agent appointed in accordance with the Receiving Agent’s Letter.

“Receiving Agent’s Letter” means the letter appointing the Receiving Agent in respect of the Offer.

“Recipient” means the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder.

“Recovery Event” means (i) any damage to, destruction of, or other casualty or loss involving any property or asset or (ii) any seizure, condemnation, confiscation or taking under the power of eminent domain of, or any relinquishing of title or use of or relating to, or any similar event in respect of, any property or asset, in each case of the Borrower or any of its Subsidiaries.

“Register” has the meaning specified in Section 10.06(c).

“Registered Public Accounting Firm” has the meaning specified in the Securities Laws and shall be independent of the Borrower as prescribed by the Securities Laws.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, representatives and advisors of such Person and of such Person’s Affiliates.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived under applicable Law.

“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the Aggregate Commitments or Lenders holding in the aggregate more than 50% of the aggregate Outstanding Amount of all Loans, as applicable; provided that the Commitment of, and the portion of the Outstanding Amount of all Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01 and the certificate required by Section 4.01(c), the secretary or any assistant secretary of the Borrower and, solely for the purposes of notices given pursuant to Article II, any other officer of the Borrower so designated by any of the foregoing officers in a notice to the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of the Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Person thereof).

“Revaluation Date” means, with respect to any Tranche A Loan, each of the following:  (a) the date of a Borrowing of a Tranche A Loan, (b) each date of a continuation of a Tranche A Loan pursuant to Section 2.02, and (c) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require.

“S&P” means Standard & Poor’s Financial Services LLC and any successor thereto.

“Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in Sterling, same day or other funds as may be determined by the Administrative Agent to be customary in the place of disbursement or payment for the settlement of international banking transactions in Sterling.

“Sanction(s)” means any economic, financial, trade or similar sanctions or embargoes administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.

“▇▇▇▇▇▇▇▇-▇▇▇▇▇” means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.

“Scheme” means a scheme of arrangement made pursuant to Part 26 of the Companies Act proposed by the Target to the Scheme Shareholders in connection with the acquisition by the Borrower of the Target Shares as contemplated by the Scheme Circular (as such

Scheme may be amended, added to, revised, renewed or waived in a manner permitted by this Agreement).

“Scheme Circular” means the circular to the Scheme Shareholders to be issued by or on behalf of the Target setting out the proposals for the Scheme stating the recommendation with respect to the Target Acquisition and the relevant Scheme to the Scheme Shareholders by the board of directors of the Target which is consistent in all material respects with the Scheme Press Release and convening a court approved meeting of the Scheme Shareholders in order to seek their approval of the Scheme.

“Scheme Documents” means the Scheme Press Release, the Scheme Resolution and the Scheme Circular and any other document designated as a Scheme Document by the Borrower and the Administrative Agent.

“Scheme Effective Date” means the date on which a copy of the court order sanctioning the Scheme is duly filed on behalf of the Target with the Registrar of Companies in accordance with section 899 of the Companies Act.

“Scheme Press Release” means the press release announcing the terms of the Scheme in compliance with Rule 2.7 of the City Code, which shall be consistent in all material respects with the press release provided to the Administrative Agent pursuant to Section 4.01(c).

“Scheme Resolution” means the resolution referred to and in the form set out in the Scheme Circular.

“Scheme Shareholders” means all the holders of the Scheme Shares.

“Scheme Shares” means the shares in the Target subject to the Scheme being all of the Target Shares.

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“Securities Exchange Act” means the Securities Exchange Act of 1934.

“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder.

“Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance with GAAP.

“Solvent” means, with respect to any Person, that the value of the assets of such Person (both at fair value and present fair saleable value) is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such

Person as of such date and that, as of such date, such Person is able to pay all liabilities of such Person as such liabilities mature and does not have unreasonably small capital.  In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Special Purpose Finance Subsidiary” means any Subsidiary of the Borrower created solely for the purposes of, and whose sole activity shall consist of, acquiring and financing accounts receivable of the Borrower and its Subsidiaries pursuant to a Permitted Securitization Facility.

“Specified Transaction Agreement Representations” means such of the representations and warranties made by the Target and its Subsidiaries in the Target Acquisition Documents as are material to the interests of the Lenders, but only to the extent the Borrower (or any of its Subsidiaries or Affiliates) has, or would have, the right not to consummate the Offer or Scheme, as the case may be, or otherwise not to consummate the Target Acquisition, or the Borrower (or any of its Subsidiaries or Affiliates) has, or would have, the right to terminate its obligations to consummate the Offer or Scheme, as the case may be, or otherwise not consummate the Target Acquisition as a result of a breach of such representations and warranties in the Target Acquisition Documents.

“Specified Representations” means those representations and warranties set forth in Sections 5.01 (solely as to the Borrower), 5.02,  5.03,  5.04,  5.14,  5.18,  5.20, 5.21(a) and 5.21(b).

“Spot Rate” for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 9:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.

“Squeeze-Out Procedures” means any step or transaction arising as a result or part of the implementation or completion of the procedures contained in sections 979-982 of the Companies Act pursuant to which the Borrower may acquire any remaining Target Shares.

“Sterling” and “£” mean the lawful currency of the United Kingdom.

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity (a) of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person, or (b) the accounts of which are consolidated with those of the Borrower in its consolidated financial

statements.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

“Swap Contract” means any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement.

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the ▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Target” has the meaning set forth in the recitals.

“Target Acquisition” has the meaning set forth in the recitals.

“Target Acquisition Closing Date” means the date on which the cash consideration for the Target Acquisition is paid by the trustee to the existing shareholders of the Target.

“Target Acquisition Documents” means the Offer Documents or the Scheme Documents, as the case may be.

“Target Debt Refinancing” means refinancing, repayment, redemption, defeasance or other discharge of the Existing Target Notes, the release and extinguishment of any liens and security interests securing such obligations and the release and extinguishment of any guarantees in respect of such obligations.

“Target Shares” means any or all of the shares in the capital of the Target.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Tranche A Commitment” means, collectively, the Tranche A-1 Commitments and the Tranche A-2 Commitments.

“Tranche A Lenders” means, collectively, the Tranche A-1 Lenders and the Tranche A-2 Lenders.

“Tranche A Loans” means, collectively, the Tranche A-1 Loans and the Tranche A-2 Loans.

“Tranche A-1 Commitment” means, as to each Tranche A-1 Lender, its obligation to make Tranche A-1 Loans to the Borrower pursuant to Section 2.01(a), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Tranche A-1 Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Tranche A-1 Lender becomes a party hereto, as applicable, as such amount may be reduced from time to time in accordance with this Agreement.  The aggregate amount of Tranche A-1 Commitments as of the Effective Date is £557,000,000.

“Tranche A-1 Lender” means each Lender identified as such on Schedule 2.01 or pursuant to the Assignment and Assumption of a Tranche A-1 Commitment or a Tranche A-1 Loan pursuant to which such Lender becomes a party hereto.

“Tranche A-1 Loan” has the meaning set forth in Section 2.01(a).

“Tranche A-1 Maturity Date” means the date that is 364 calendar days after the Closing Date; provided,  however, that, if such date is not a Business Day, the Tranche A-1 Maturity Date shall be the immediately preceding Business Day.

“Tranche A-2 Commitment” means, as to each Tranche A-2 Lender, its obligation to make Tranche A-2 Loans to the Borrower pursuant to Section 2.01(b), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Tranche A-2 Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Tranche A-2 Lender becomes a party hereto, as applicable, as such amount may be reduced from time to time in accordance with this Agreement.  The aggregate amount of Tranche A-2 Commitments as of the Effective Date is £150,000,000.

“Tranche A-2 Lender” means each Lender identified as such on Schedule 2.01 or pursuant to the Assignment and Assumption of a Tranche A-2 Commitment or a Tranche A-2 Loan pursuant to which such Lender becomes a party hereto.

“Tranche A-2 Loan” has the meaning set forth in Section 2.01(b).

“Tranche A-2 Maturity Date” means the date that is 90 calendar days after the Closing Date; provided,  however, that, if such date is not a Business Day, the Tranche A-2 Maturity Date shall be the immediately preceding Business Day.

“Tranche B Availability Period” means the period from but excluding the Target Acquisition Closing Date and ending on December 5, 2016.

“Tranche B Closing Date” means the date after the Target Acquisition Closing Date and on or prior to the end of the Tranche B Availability Period on which all of the conditions precedent in Section 4.02(III) are satisfied or waived in accordance with Section 10.01 and the Tranche B Loans are made to the Borrower.    

“Tranche B Commitment” means, as to each Tranche B Lender, its obligation to make Tranche B Loans to the Borrower pursuant to Section 2.01(c), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Tranche B Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Tranche B Lender becomes a party hereto, as applicable, as such amount may be reduced from time to time in accordance with this Agreement.  The aggregate amount of Tranche B Commitments as of the Effective Date is $250,000,000.

“Tranche B Lender” means each Lender identified as such on Schedule 2.01 or pursuant to the Assignment and Assumption of a Tranche B Commitment or a Tranche B Loan pursuant to which such Lender becomes a party hereto.

“Tranche B Loan” has the meaning set forth in Section 2.01(c).

“Tranche B Maturity Date” means the date that is 364 calendar days after the Target Acquisition Closing Date;  provided,  however, that if such date is not a Business Day, the Tranche B Maturity Date shall be the immediately preceding Business Day.

“Transaction Costs”  means fees (including the fees payable under the Loan Documents and the Fee Letter) and expenses (including taxes thereon) and all stamp, documentary, registration or similar taxes and duties, in any such case payable by or incurred by or on behalf of the Borrower or any of its Affiliates in connection with the Transactions and the Target Acquisition and the other transactions contemplated by this Agreement and the 2.7 Announcement, including, without limitation, the preparation of, negotiation of and entry into this Agreement, the other Loan Documents, the Fee Letter,  the 2.7 Announcement and the Target Acquisition Documents.

“Transactions” means, collectively, (i) the Financing Transactions, (ii) the Target Acquisition and the consummation of the other transactions contemplated by the 2.7 Announcement, the Target Acquisition Documents, the Loan Documents, the Fee Letter and any other agreements related to the foregoing, (iii) the refinancing of any Indebtedness of the Target, (iv) the consummation of any other transactions contemplated by any of the foregoing and (v) the payment of any Transaction Costs in connection with the foregoing.

“Type” means, with respect to a Tranche B Loan, its character as a Base Rate Tranche B Loan or a Eurocurrency Rate Tranche B Loan.

“Unencumbered Cash and Cash Equivalents” means cash or cash equivalents owned by Borrower and its Subsidiaries on a consolidated basis (excluding assets of any retirement plan) which (a) are not the subject of any Lien, and (b) may be converted to cash within thirty (30) days.

“United States” and “U.S.” mean the United States of America.

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

 

 

 

 

 

 

(b) Subject to the terms and conditions set forth herein, each Tranche A-2 Lender severally agrees to make loans (each such loan, a “Tranche A-2 Loan”) to the Borrower during the Certain Funds Period in Sterling in a single drawing on the Closing Date in an aggregate amount not to exceed the amount of such Tranche A-2 Lender’s Tranche A-2 Commitment. Tranche A-2 Loans may not be reborrowed once repaid or prepaid.  

(c) Subject to the terms and conditions set forth herein, each Tranche B Lender severally agrees to make loans (each such loan, a “Tranche B Loan”) to the Borrower either (x) during the Certain Funds Period in Dollars in a single drawing on the Closing Date or (y) during the Tranche B Availability Period in Dollars in a single drawing on the Tranche B Closing Date, in the case of each of clause (x) and (y), in an aggregate amount not to exceed the amount of such Tranche B Lender’s Tranche B Commitment. Tranche B Loans may not be reborrowed once repaid or prepaid. 

 

 

 

(b) Unless previously terminated, the Tranche A-1 Commitment and the Tranche A-2 Commitment of each Lender shall automatically terminate in full at 5:00 p.m. (New York City time) on the earlier of (i) the termination of the Certain Funds Period and (ii) the Closing Date (after giving effect to the Borrowings on such date).  Unless previously terminated, the Tranche B Commitment of each Lender shall automatically terminate in full at 5:00 p.m. (New York City time) on the earliest of (i) the end of the Tranche B Availability Period, (ii) the Closing Date (after giving effect to the Borrowings on such date, if the Tranche B Loans are made to the Borrower on such date) and (iii) the Tranche B Closing Date (after giving effect to the Borrowings on such date, if the Tranche B Loans are made to the Borrower on such date).

(c) Upon receipt by the Borrower or any of its Subsidiaries, on or after the Effective Date but prior to the Closing Date (or, in the case of the Tranche B Commitments, the Tranche B Closing Date, if applicable), of Net Cash Proceeds arising from any Asset Sale, Debt Issuance or any Equity Issuance, the Aggregate Commitments shall be reduced no later than the Business Day following the receipt of such Net Cash Proceeds in an amount equal to 100% of such Net Cash Proceeds.  Any reduction of the Aggregate Commitments pursuant to this clause (c) shall be applied (i) if such Net Cash Proceeds are denominated in currencies other than Dollars (it being understood that the Administrative Agent shall convert such Net Cash Proceeds into Sterling or Dollars, as applicable, at the Spot Rate in effect on the date of receipt of such Net Cash Proceeds by the Borrower or any of its Subsidiaries) first, to the Tranche A-1 Commitments of the Lenders in accordance with their respective Applicable Percentages until Tranche A-1 Commitments have been reduced to zero, second, to the Tranche A-2 Commitments of the Lenders in accordance with their respective Applicable Percentages until the Tranche A-2 Commitments have been reduced to zero and third, to the Tranche B Commitments of the Lenders in accordance with their respective Applicable Percentages and (y) if such Net Cash Proceeds are denominated in Dollars, first, to the Tranche B Commitments of the Lenders in accordance with their respective Applicable Percentages until the Tranche B Commitments have been reduced to zero, second, to the Tranche A-1 Commitments of the Lenders in accordance with their respective Applicable Percentages until the Tranche A-1 Commitments have been reduced to zero and third, to the Tranche A-2 Commitments of the Lenders in accordance with their respective Applicable Percentages; provided that in the case of immediately preceding clause (y), after the Tranche B Commitments have been reduced to zero, the Administrative Agent shall  convert such excess Net Cash Proceeds into Sterling at the Spot Rate in effect on the date of receipt of such Net Cash Proceeds by the Borrower or any of its Subsidiaries. At the Borrower’s option, so long as the Tranche A-1 Commitments and the Tranche B Commitments have been reduced to zero, the Borrower may retain the Net Cash Proceeds of any Debt Issuance arising from issuance of senior unsecured notes to the extent used promptly (and, in all events, within 5 Business Days) to refinance (on a dollar-for-dollar basis) the Borrower’s existing 6.63% Notes due 2016.

(d) The Borrower shall promptly notify the Administrative Agent of receipt of such Net Cash Proceeds, and the Administrative Agent will promptly notify each Lender of its receipt of each such notice.

(e) In the event and on each occasion that the Borrower or any of its Subsidiaries enters into any term loan facility, the Commitments shall be automatically and permanently reduced ratably in an amount equal to 100% of the committed amount under such term loan facility (or, if less, by an amount equal to the aggregate amount of the Commitments then in effect), such

reduction to be effective upon the effectiveness of the definitive documentation for such term loan facility and receipt by (x) the Administrative Agent of a notice from the Borrower that such term loan facility constitutes a Qualifying Term Loan Facility and (y) the Administrative Agent and the Cash Confirmation Advisor of evidence, in form and substance reasonably satisfactory to the Administrative Agent and the Cash Confirmation Advisor that the Borrower will have sufficient resources available to it following such reduction of the Commitments to complete the Target Acquisition (which may include, but is not limited to, the written consent of the Cash Confirmation Advisor prior to the date of such reduction). Such reduction shall be applied to the Tranche A-1 Commitments, and, if no Tranche A-1 Commitments are outstanding at such time, the Tranche B Commitments and, if no Tranche A-1 Commitments and no Tranche B Commitments are outstanding at such time, Tranche A-2 Commitments, in each case in accordance with the Lenders’ respective Applicable Percentages. 

 

 

 

 

 

 

 

A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

 

The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

 

 

 

 

Notwithstanding the foregoing, if the Administrative Agent has made the determination described in this Section, the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for any loans subject to clauses (a),  (b) or (c) above (any “Impacted Loans”), in which case such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a) of the first sentence of this section, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.

 

and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurocurrency Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay  to such Lender, such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

 

including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract but excluding any loss of anticipated profits.  The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Tranche A Loan or Eurocurrency Rate Tranche B Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Tranche A Loan or Eurocurrency Rate Tranche B Loan was in fact so funded.

 

 

 

The Administrative Agent shall promptly notify the Borrower, the Lenders and the Cash Confirmation Advisor of the occurrence of the Effective Date and such notice shall be conclusive and binding absent manifest error.  Other than to the extent that the Required Lenders notify the Administrative Agent in writing to the contrary before the Administrative Agent gives the notification described in the immediately preceding sentence, the Lenders hereby authorize (but do not require) the Administrative Agent to give that notification.  The Administrative Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.  Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have

received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.

 

(I) The obligation of each Lender to make a Loan on the Closing Date is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions:

(II)The obligation of each Lender to make a Tranche B Loan on the Closing Date is subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions set forth in immediately preceding clause (I) of this Section 4.02 and the following additional conditions:

(a)the Specified Target Acquisition Representations shall be true and correct to the extent that the Borrower (or any of its Subsidiaries or Affiliates) has, or would have, the right not to consummate the Offer or the Scheme, as the case may be,  or otherwise not to consummate the Target Acquisition, or the Borrower (or any of its Subsidiaries or Affiliates) has, or would have, the right to terminate its obligations to consummate Offer or the Scheme, as the case may be, or otherwise have the right to terminate its obligations to consummate the Target Acquisition as a result of a breach of such representations and warranties in the Target Acquisition Documents, and the Specified Representations shall be true and correct in all material respects (or in all respects if qualified by materiality or material adverse effect or similar);

(b) since June 29, 2015, there has not occurred any change, development, circumstance, event, occurrence or effect (each an “Effect”) that, when considered either

individually or in the aggregate together with all other Effects, has, directly or indirectly,  caused or otherwise given rise to a Material Adverse Effect;

(c)  the Administrative Agent shall have received a Loan Notice in accordance with Section 2.02 with respect to such Tranche B Loan;

(d)the Administrative Agent and the Lenders shall have received from the Borrower all documentation and other information requested by the Administrative Agent or any Lender at least 3 Business Days prior to the Closing Date that is required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.

(III)The obligation of each Lender to make a Tranche B Loan on the Tranche B Closing Date is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions:

 

provided that immediately upon expiry of the Certain Funds Period, all rights, remedies and entitlements shall be available to the Administrative Agent and the Lenders notwithstanding that they may not have been used or been available for use during the Certain Funds Period.

The Borrower represents and warrants to the Administrative Agent and the Lenders as of the Effective Date, the Closing Date (after giving effect to the consummation of the Transactions) and the Tranche B Closing Date that: