8-K
VIASAT INC false 0000797721 0000797721 2023-08-24 2023-08-24

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): August 24, 2023

 

LOGO

VIASAT, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

                     

 

000-21767

 

                     

 

33-0174996

 

                     

(State or other jurisdiction of
incorporation)
  (Commission File No.)   (I.R.S. Employer
Identification No.)

6155 El Camino Real

Carlsbad, California 92009

(Address of principal executive offices, including zip code)

 

 

Registrant’s telephone number, including area code: (760) 476-2200

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

(Title of Each Class)

 

(Trading Symbol)

 

(Name of Each Exchange
on which Registered)

Common Stock, par value $0.0001 per share   VSAT   The Nasdaq Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company                    

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.              


Item 1.01.

Entry into a Material Definitive Agreement.

On August 24, 2023, Viasat, Inc. (“Viasat”) entered into the Seventh Amendment to Credit Agreement (the “Amendment”), which amended the Credit Agreement, dated as of November 26, 2013, with MUFG Bank, Ltd. (as successor-in-interest to MUFG Union Bank, N.A.), as administrative agent and collateral agent, and the lenders party thereto (as amended, the “Revolving Credit Agreement”). The Amendment, among other matters, provides additional covenant flexibility and provides for commitments under the Revolving Credit Agreement in an aggregate amount of $597,500,000.00 with a maturity date that is the earlier of August 24, 2028 and the springing maturity date (as defined in the Revolving Credit Agreement, which is effectively 91 days prior to the maturity date of certain material debt for borrowed money of Viasat and its subsidiaries to the extent certain conditions have not been satisfied as of such date).

Borrowings under the Revolving Credit Agreement bear interest, at Viasat’s option, at either (1) the highest of the federal funds rate plus 0.50%, Term SOFR for an interest period of one month plus 1.00%, or the administrative agent’s prime rate as announced from time to time, or (2) Term SOFR (not to be less than 0.00% per annum), plus, in the case of each of (1) and (2), an applicable interest margin that is based on Viasat’s total leverage ratio. The Revolving Credit Agreement is required to be guaranteed by certain significant domestic subsidiaries of Viasat (as defined in the Revolving Credit Agreement) and secured by substantially all of Viasat’s and any subsidiary guarantor’s assets. As of the date hereof, none of Viasat’s subsidiaries guaranteed the Revolving Credit Agreement.

The Revolving Credit Agreement contains financial covenants regarding a maximum total leverage ratio and a minimum interest coverage ratio. In addition, the Revolving Credit Agreement contains covenants that restrict, among other things, the ability of Viasat and its restricted subsidiaries to incur additional debt, grant liens, sell assets, make investments and acquisitions, make capital expenditures, pay dividends and make certain other restricted payments. The Revolving Credit Agreement also contains customary events of default. Upon the occurrence and during the continuance of an event of default, the lenders may declare all outstanding amounts under the Revolving Credit Agreement immediately due and payable, and may terminate commitments to make any additional advances thereunder.

Certain of the lenders under the Revolving Credit Agreement, and their respective affiliates, have performed, and may in the future perform, for Viasat and its affiliates various commercial banking, investment banking, financial advisory or other services for which they have received and/or may in the future receive customary compensation and expense reimbursement.

The description of the Amendment contained herein does not purport to be complete and is qualified in its entirety by reference to the complete text of the Amendment, which is attached as Exhibit 10.1 to this report and is incorporated herein by reference.

 

Item 2.03.

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information provided in Item 1.01 above is incorporated herein by reference.

 

Item 9.01.

Financial Statements and Exhibits.

 

(d)

Exhibits

 

   Exhibit
   Number    

    Description of Exhibit                                                                                                                                        
   10.1  

Seventh Amendment to Credit Agreement, dated as of August 24, 2023, by and among Viasat, Inc., MUFG Bank, Ltd. (as successor-in-interest to MUFG Union Bank, N.A.), as administrative agent and collateral agent, and the other lenders party thereto.

   104  

  Cover Page Interactive Data File (embedded with the Inline XBRL document)


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date:    August 25, 2023    VIASAT, INC.
   By:   

/s/ Brett Church

   Name:    Brett Church
   Title:    Associate General Counsel
EX-10.1

Exhibit 10.1

Execution Version

SEVENTH AMENDMENT

TO CREDIT AGREEMENT

This Seventh Amendment to the Credit Agreement (as defined below), dated as of August 24, 2023 (this “Amendment”) is entered into as by and among VIASAT, INC., a Delaware corporation (“Borrower”), each 2023 EXTENDING REVOLVING LENDER (as defined below) (which comprise at least the Requisite Lenders (as defined in the Credit Agreement (as defined below))), the 2023 NEW REVOLVING LENDER (as defined below), each Issuing Lender (as defined in the Credit Agreement) party hereto, and MUFG BANK, LTD. (as successor to MUFG Union Bank, N.A. in its capacities as administrative agent and as collateral agent), as administrative agent and as collateral agent (in such capacity, “Agent”). BofA Securities, Inc. has been appointed as sole lead arranger and sole book-runner for purposes of this Amendment (in such capacity, the “Arranger”).

RECITALS

WHEREAS, Borrower, Agent and the lenders party thereto as of the date hereof (the “Existing Revolving Lenders”) are parties to that certain Credit Agreement dated as of November 26, 2013 (as amended by that certain First Amendment to Credit Agreement, dated as of March 12, 2015, that certain Second Amendment to Credit Agreement, dated as of May 24, 2016, that certain Third Amendment to Credit Agreement, dated as of May 24, 2018, that certain Fourth Amendment to Credit Agreement, dated as of January 18, 2019, that certain Fifth Amendment to Credit Agreement, dated as of November 23, 2021, and that certain Sixth Amendment to Credit Agreement, dated as of March 4, 2022, and as otherwise amended, modified, restated or supplemented from time to time prior to giving effect to this Amendment, the “Credit Agreement”; the Credit Agreement as modified by this Amendment, the “Amended Credit Agreement”; unless otherwise defined herein, all capitalized terms in this Amendment shall be as defined in the Amended Credit Agreement);

WHEREAS, Borrower has requested certain amendments to the Credit Agreement to, among other things, extend the Maturity Date (as defined in the Credit Agreement) of the Revolving Commitments (as defined in the Credit Agreement) held by each Existing Revolving Lender party hereto (such Existing Revolving Lenders being collectively referred to as the “2023 Extending Revolving Lenders”) from January 18, 2024 to the Revolving Loan Maturity Date (as defined in Exhibit A hereto) (such extension, the “Revolving Commitment Extension”);

WHEREAS, pursuant to Section 2.5 of the Credit Agreement, Borrower has notified Agent and the Existing Revolving Lenders that Revolving Commitments (as defined in the Credit Agreement) of any Existing Revolving Lender that is not a 2023 Extending Revolving Lender will be terminated in full on the Seventh Amendment Effective Date (such termination, the “Non-Extending Revolving Commitment Termination”);

WHEREAS, pursuant to Section 2.8 of the Amended Credit Agreement, Borrower has requested an increase of the Revolving Commitment by an aggregate amount of $40,000,000 (the “2023 New Revolving Commitment”);

WHEREAS, Barclays Bank PLC (the “2023 New Revolving Lender”) has agreed to provide the 2023 New Revolving Commitment and to otherwise consent to the terms of this Amendment and the Amended Credit Agreement; and

WHEREAS, in connection with the Revolving Commitment Extension, the Non-Extending Revolving Commitment Termination and the establishment of the 2023 New Revolving Commitment (collectively, the “Seventh Amendment Transactions”), the parties hereto have agreed to


amend the Credit Agreement in certain respects in accordance with the terms thereof, as further described in this Amendment.

NOW, THEREFORE, the parties hereto agree as follows:

1.    Revolving Commitment Extension. Effective on and as of the Seventh Amendment Effective Date (as defined below), (i) the entire amount of the Revolving Commitment (as defined in the Credit Agreement) of each 2023 Extending Revolving Lender under the Credit Agreement as in effect immediately prior to the Seventh Amendment Effective Date shall continue in effect under the Amended Credit Agreement in the same amount as such 2023 Extending Revolving Lender’s Revolving Commitment (under and as defined in the Credit Agreement) immediately prior to the Seventh Amendment Effective Date, having the terms applicable to Revolving Commitments under the Amended Credit Agreement and (ii) each 2023 Extending Revolving Lender shall continue to be a Lender under the Amended Credit Agreement and the other Loan Documents, and shall have all the privileges, rights and obligations of a “Lender” under the Amended Credit Agreement and the other Loan Documents.

2.    Non-Extending Revolving Commitment Termination. Effective on and as of the Seventh Amendment Effective Date, the Revolving Commitments (as defined in the Credit Agreement) of any Existing Revolving Lender that is not a 2023 Extending Revolving Lender are hereby terminated in full on the Seventh Amendment Effective Date.

3.    2023 New Revolving Commitment. Effective on and as of the Seventh Amendment Effective Date:

3.1    The 2023 New Revolving Lender agrees to extend to Borrower, on the Seventh Amendment Effective Date (immediately after giving effect to the Revolving Commitment Extension and the Non-Extending Revolving Commitment Termination), the 2023 New Revolving Commitments, in an amount equal to $40,000,000.

3.2    From and after the establishment of the 2023 New Revolving Commitment, (i) the 2023 New Revolving Commitment (and any Revolving Loans incurred in respect thereof) shall be deemed to be, and shall have the terms and conditions applicable to, Revolving Commitments (and Revolving Loans) under the Amended Credit Agreement and the other Loan Documents and (ii) the 2023 New Revolving Lender shall be become a Lender under, and for all purposes of, the Amended Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.

4.    Reallocation of Participations in Letters of Credit. Effective on and as of the Seventh Amendment Effective Date, the participations of the Revolving Lenders in any Letters of Credit outstanding as of immediately prior to the Seventh Amendment Effective Date shall be reallocated among the Revolving Lenders in accordance with their Revolving Commitments on and as of the Seventh Amendment Effective Date.

5.    Amendments.

5.1    Effective on and as of the Seventh Amendment Effective Date, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken 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 pages attached as Exhibit A hereto.


5.2    Schedule 1.1 to the Credit Agreement is hereby amended and restated in its entirety in the form of Schedule 1.1 attached as Annex A hereto.

5.3    Schedule 2.4 to the Credit Agreement is hereby amended and restated in its entirety in the form of Schedule 2.4 attached as Annex B hereto.

5.4    Exhibit B (Form of Compliance Certificate) to the Credit Agreement is hereby amended and restated in its entirety in the form of Exhibit B attached as Annex C hereto.

5.5    Exhibit C (Form of Pricing Certificate) to the Credit Agreement is hereby amended and restated in its entirety in the form of Exhibit C attached as Annex D hereto.

5.6    Exhibit D (Form of Request for Loan) to the Credit Agreement is hereby amended and restated in its entirety in the form of Exhibit D attached as Annex E hereto.

6.    Reference to and effect on the Credit Agreement and the other Loan Documents. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement,” “thereunder,” “thereof,” “therein” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Amended Credit Agreement. This Amendment shall be deemed a “Loan Document” as defined in the Amended Credit Agreement. Except as specifically amended herein, the Credit Agreement and all other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Lenders under the Credit Agreement or any other Loan Documents, constitute a waiver of any provision of the Credit Agreement or any other Loan Documents, or serve to effect a novation of the Obligations.

7.    Conditions.

7.1    This Amendment shall become effective and binding upon the parties hereto upon satisfaction of the following conditions precedent as determined by Agent (the date of such effectiveness, the “Seventh Amendment Effective Date”):

 

  a.

Agent shall have received this Amendment, duly executed by Borrower, Agent, each 2023 Extending Revolving Lender (which collectively comprise at least the Requisite Lenders (as defined in the Credit Agreement)), the 2023 New Revolving Lender and each Issuing Lender party to the Credit Agreement as of the Seventh Amendment Effective Date;

 

  b.

Agent shall have received (A) a Certificate of the Secretary of Borrower (or other Responsible Official) attaching (and certifying as to) (i) a copy of the certificate of incorporation of Borrower and any and all amendments thereof, certified as of a recent date by the Secretary of State of the State of Delaware, (ii) a copy of the bylaws of Borrower and any and all amendments thereof, (iii) resolutions of the Board of Directors of Borrower (or committee thereof) approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party as of the Closing Date and (iv) signature and incumbency certificates of the officers of Borrower; and (B) a good standing certificate from the Secretary of State of the State of Delaware, certifying as to the good standing of Borrower;


  c.

Agent shall have received a favorable written legal opinion of Latham & Watkins LLP, counsel to Borrower, as to such matters in connection with this Amendment as the Agent may reasonably request, in form and substance satisfactory to the Agent (and Borrower hereby instructs such counsel to deliver such opinion to the Agent and the Lenders);

 

  d.

The representations and warranties of Borrower contained in Section 8 of this Amendment and Article 4 of the Credit Agreement shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the Seventh Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier specified date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date;

 

  e.

No Default or Event of Default shall have occurred and be continuing as of the Seventh Amendment Effective Date;

 

  f.

Agent shall have received a Certificate of Borrower, certifying that the conditions specified in Sections 7(d) and 7(e) of this Amendment have been satisfied;

 

  g.

Borrower shall have paid (i) all upfront fees required to have been paid by Borrower to the Revolving Lenders on the Seventh Amendment Effective Date as separately agreed between Borrower and the Revolving Lenders and (ii) all arranger fees required to have been paid by Borrower to the Arranger on the Seventh Amendment Effective Date as separately agreed between Borrower and the Arranger; and

 

  h.

The Borrower shall have paid all reasonable and documented out-of-pocket expenses incurred by the Agent and the Arranger in connection with this Amendment (including the reasonable and documented fees and disbursements of outside counsel).

8.    Representations and Warranties. To induce the other parties hereto to enter into this Amendment, Borrower hereby represents and warrants to each of the 2023 Extending Revolving Lenders, the 2023 New Revolving Lender, the Issuing Lenders and Agent that, as of the Seventh Amendment Effective Date:

 

  a.

Borrower has the requisite corporate power and authority to execute and deliver this Amendment and to perform its Obligations hereunder;

 

  b.

This Amendment constitutes the legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as enforcement may be limited by Debtor Relief Laws or equitable principles relating to the granting of specific performance and other equitable remedies as a matter of judicial discretion;

 

  c.

The execution, delivery and performance by Borrower of this Amendment have been duly authorized by all necessary corporate or limited liability company action, and do not and will not: (i) require any consent or approval not heretofore obtained of any partner, director, stockholder, security holder or creditor of


  Borrower; (ii) violate or conflict with any provision of Borrower’s certificate of incorporation or bylaws or equivalent charter documents, as applicable; (iii) result in or require the creation or imposition of any Lien (other than pursuant to the Loan Documents) or Rights of Others (other than Permitted Encumbrances) upon or with respect to any Property now owned or leased or hereafter acquired by Borrower; (iv) violate any Requirement of Law applicable to Borrower in any respect that constitutes a Material Adverse Effect; or (v) result in a breach of or constitute a default under, or cause or permit the acceleration of any obligation owed under, any indenture or loan or credit agreement or any other Contractual Obligation to which Borrower is a party or by which Borrower or any of its Property is bound or affected in any respect that constitutes a Material Adverse Effect; and Borrower is not in violation of, or default under, any Requirement of Law or Contractual Obligation, or any indenture, loan or credit agreement described in this Section 8(c)(v), in any respect that constitutes a Material Adverse Effect;

 

  d.

Each of the representations and warranties contained in Article 4 of the Amended Credit Agreement is true and correct in all material respects on and as of the Seventh Amendment Effective Date with the same effect as if made on and as of such date, both immediately before and after giving effect to this Amendment and the Seventh Amendment Transactions (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date); provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects;

 

  e.

No Default or Event of Default has occurred and is continuing on the Seventh Amendment Effective Date, both immediately before and after giving effect to this Amendment and the Seventh Amendment Transactions.

9.    Reaffirmation of Liens. Borrower hereby (a) affirms that each of the Liens granted in or pursuant to the Loan Documents are valid and subsisting and (b) agrees that this Amendment shall in no manner impair or otherwise adversely affect any of the Liens granted in or pursuant to the Loan Documents.

10.    Incorporation by Reference. The provisions of Sections 11.3 (Costs and Expenses), 11.11 (Indemnity by Borrower), 11.14 (Confidentiality), 11.17 (Governing Law; Venue), and 11.22 (Disputes) of the Credit Agreement are incorporated herein by this reference mutatis mutandis. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. Delivery of an executed counterpart hereof by facsimile transmission or other electronic means shall be effective as delivery of a manually executed counterpart. The words “execution,” “signed,” “signature,” and words of like import in this letter agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Borrower agrees to promptly pay all reasonable and documented attorneys’ fees and costs incurred by Agent’s counsel in connection with this Amendment, which may be debited from any of Borrower’s accounts (following Borrower’s authorization of such fees and costs). Each party shall execute and deliver such further documents, and perform such further acts, as may be reasonably necessary to achieve the intent of the parties as expressed in this Amendment.

[Balance of Page Intentionally Left Blank]


IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.

 

VIASAT, INC.
By:  

/s/ Shawn Duffy

Name:   Shawn Duffy
Title:   Senior Vice President and Chief Financial Officer

 

Signature Page to Seventh Amendment


MUFG BANK, LTD.,

as Agent

By:  

/s/ Lawrence Blat

Name:   Lawrence Blat
Title:   Authorized Signatory

MUFG BANK, LTD.,

as a 2023 Extending Revolving Lender and an Issuing Lender

By:  

/s/ Colin Donnarumma

Name:   Colin Donnarumma
Title:   Authorized Signatory

 

Signature Page to Seventh Amendment


BANK OF AMERICA, N.A.,

as a 2023 Extending Revolving Lender and an Issuing Lender

By:  

/s/ Jennifer Yan

Name:   Jennifer Yan
Title:   Senior Vice President

 

Signature Page to Seventh Amendment


JPMORGAN CHASE BANK, N.A.,

as a 2023 Extending Revolving Lender and an Issuing Lender

By:  

/s/ Monica Knight

Name:   Monica Knight
Title:   Vice President

 

Signature Page to Seventh Amendment


Truist Bank,
as a 2023 Extending Revolving Lender
By:  

/s/ Jim C. Wright

Name:   Jim C. Wright
Title:   Vice President

 

Signature Page to Seventh Amendment


CITIZENS BANK, N.A.,
as a 2023 Extending Revolving Lender
By:  

/s/ Darran Wee

Name:   Darran Wee
Title:   Senior Vice President

 

Signature Page to Seventh Amendment


UMPQUA BANK,

as a 2023 Extending Revolving Lender

By:  

/s/ Monica Fleming

Name:   Monica Fleming
Title:   Senior Vice President

 

Signature Page to Seventh Amendment


Barclays Bank PLC,

as the 2023 New Revolving Lender

By:  

/s/ Sean Duggan

Name:   Sean Duggan
Title:   Director

 

Signature Page to Seventh Amendment


Zions Bancorporation NA dba California Bank & Trust,

as a 2023 Extending Revolving Lender

By:  

/s/ Steve DeLong

Name:   Steve DeLong
Title:   Senior Vice President

 

Signature Page to Seventh Amendment


Exhibit A

Amended Credit Agreement

(Attached hereto)


Conformed Through SixthSeventh Amendment

CREDIT AGREEMENT

Dated as of November 26, 2013

among

VIASAT, INC., as Borrower

THE LENDERS HEREIN NAMED

MUFG UNION BANK, N.ABANK, LTD.,

as Agent

BANK OF AMERICA, N.A.,

JPMORGAN CHASE BANK, N.A.

and

SUNTRUSTTRUIST BANK,

as Co-Syndication Agents

COMPASS BANK,

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

CITIZENS BANK, N.A.

and

SUNTRUSTTRUIST BANK,

as Co-Documentation Agents,

and

MERRILL LYNCH, PIERCE, FENNER & SMITH

INCORPORATEDBOFA SECURITIES, INC.,

MUFG UNION BANK, N.ALTD.,

JPMORGAN CHASE BANK, N.A.

and

SUNTRUST ROBINSON HUMPHREY, INCTRUIST

SECURITIES, INC.,

as Joint Lead Arrangers and Joint Book Runners


TABLE OF CONTENTS

 

             Page  

Article 1 DEFINITIONS AND ACCOUNTING TERMS

     1  

            

 

Section  1.1

  Defined Terms      1  
 

Section  1.2

  Use of Defined Terms      4253  
 

Section  1.3

  Accounting Terms      4253  
 

Section  1.4

  Rounding      4254  
 

Section  1.5

  Exhibits and Schedules      4354  
 

Section  1.6

  References to “Borrower and its Restricted Subsidiaries”      4354  
 

Section  1.7

  Miscellaneous Terms      4354  
 

Section  1.8

  Times of Day; Rates      4354  
 

Section  1.9

  Limited Condition Transactions      4354  

Article 2 LOANS AND LETTERS OF CREDIT

     4455  
 

Section  2.1

  Loans – General      4455  
 

Section  2.2

  Alternate Base Rate Loans      4557  
 

Section  2.3

  Eurodollar RateTerm SOFR Loans      4557  
 

Section  2.4

  Letters of Credit      4557  
 

Section  2.5

  Termination or Reduction of Revolving Commitment      5063  
 

Section  2.6

  Agent’s Right to Assume Funds Available for Advances      5164  
 

Section  2.7

  Collateral      5165  
 

Section  2.8

  Increase of Commitment      5165  
 

Section  2.9

  Swing Line Advances      5467  
 

Section  2.10

  Defaulting Lenders      5670  
 

Section  2.11

  Cash Collateral      5973  
 

Section  2.12

  Request for Extended Facilities      6074  
 

Section  2.13

  Alternate Rate of Interest      76  

Article 3 PAYMENTS AND FEES

     6278  
 

Section  3.1

  Principal and Interest      6278  
 

Section  3.2

  Closing Date Fees      6380  
 

Section  3.3

  Commitment Fee      6380  
 

Section  3.4

  Letter of Credit Fees      6380  
 

Section  3.5

  Increased Commitment Costs      6481  
 

Section  3.6

  EurodollarTerm SOFR Costs and Related Matters      6581  
 

Section  3.7

  Late Payments      6884  
 

Section  3.8

  Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate      6884  
 

Section  3.9

  Non-Banking Days      6985  
 

Section  3.10

  Manner and Treatment of Payments      6985  
 

Section  3.11

  Taxes      7085  
 

Section  3.12

  Funding Sources      7389  
 

Section  3.13

  Failure to Charge Not Subsequent Waiver      7389  

 

i


 

Section  3.14

  Agent’s Right to Assume Payments Will be Made      7490  

            

 

Section  3.15

  Fee Determination Detail      7490  
 

Section  3.16

  Survivability      7490  

Article 4 REPRESENTATIONS AND WARRANTIES

     7490  
 

Section  4.1

  Existence and Qualification; Power; Compliance With Laws      7490  
 

Section  4.2

  Authority; Compliance With Other Agreements and Instruments and Government Regulations      7491  
 

Section  4.3

  No Governmental Approvals Required      7591  
 

Section  4.4

  Subsidiaries      7591  
 

Section  4.5

  Financial Statements      7692  
 

Section  4.6

  No Other Liabilities; No Material Adverse Changes      7692  
 

Section  4.7

  Intentionally Deleted      7692  
 

Section  4.8

  Intangible Assets      7693  
 

Section  4.9

  Use of Proceeds      7693  
 

Section  4.10

  Litigation      7693  
 

Section  4.11

  Binding Obligations      7793  
 

Section  4.12

  EEAAffected Financial Institutions      7793  
 

Section  4.13

  ERISA      7793  
 

Section  4.14

  Regulation U; Investment Company Act      7794  
 

Section  4.15

  Disclosure      7794  
 

Section  4.16

  Tax Liability      7794  
 

Section  4.17

  Projections      7895  
 

Section  4.18

  Hazardous Materials      7895  
 

Section  4.19

  Security Interests      7895  
 

Section  4.20

  Solvency      7895  
 

Section  4.21

  Anti-Corruption Laws, AML Laws and Sanctions      7895  
 

Section  4.22

  Patriot Act      7996  
 

Section  4.23

  Communications Licenses      7996  

Article 5 AFFIRMATIVE COVENANTS

     7996  
 

Section  5.1

  Payment of Taxes and Other Potential Liens      7996  
 

Section  5.2

  Preservation of Existence      7997  
 

Section  5.3

  Maintenance of Properties      8097  
 

Section  5.4

  Maintenance of Insurance      8097  
 

Section  5.5

  Compliance With Laws      8199  
 

Section  5.6

  Inspection Rights      8199  
 

Section  5.7

  Keeping of Records and Books of Account      8299  
 

Section  5.8

  Compliance With Agreements      8299  
 

Section  5.9

  Use of Proceeds      8299  
 

Section  5.10

  Hazardous Materials Laws      82100  
 

Section  5.11

  Designation of Subsidiaries      82100  
 

Section  5.12

  Future Restricted Subsidiaries; Additional Security Documentation      83101  
 

Section  5.13

  Certain ECA Revenue      84102  

 

ii


Article 6 NEGATIVE COVENANTS

     84102  

            

 

Section  6.1

  Payment of Subordinated Obligations      84102  
 

Section  6.2

  Disposition of Property      85103  
 

Section  6.3

  Mergers      85104  
 

Section  6.4

  Hostile Acquisitions      86105  
 

Section  6.5

  Acquisitions      86105  
 

Section  6.6

  Distributions      86105  
 

Section  6.7

  ERISA      86106  
 

Section  6.8

  Change in Nature of Business      87106  
 

Section  6.9

  Liens      87106  
 

Section  6.10

  Indebtedness and Guaranty Obligations      88107  
 

Section  6.11

  Transactions with Affiliates      90109  
 

Section  6.12

  Negative Pledges      90110  
 

Section  6.13

  Total Leverage Ratio      91110  
 

Section  6.14

  Interest Coverage Ratio      91111  
 

Section  6.15

  Use of Proceeds; Sanctions; Anti-Corruption Laws      91111  
 

Section  6.16

  Investments      91111  
 

Section  6.17

  Capital Expenditures      93113  
 

Section  6.18

  Amendments to Subordinated Obligations      93113  
 

Section  6.19

  Changes in Name, Location of Chief Executive Offices, Etc      93114  
 

Section  6.20

  Hedging Agreements      94114  
 

Section  6.21

  ECA Borrower Equity Interests      94114  

Article 7 INFORMATION AND REPORTING REQUIREMENTS

     94114  
 

Section  7.1

  Financial and Business Information      94114  
 

Section  7.2

  [Reserved]      96116  
 

Section  7.3

  Compliance Certificates      96116  
 

Section  7.4

  Electronic Communications; Platform      96117  

Article 8 CONDITIONS

     98118  
 

Section  8.1

  Initial Credit Issuance      98118  
 

Section  8.2

  Any Advance      99120  

Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT

     100121  
 

Section  9.1

  Events of Default      100121  
 

Section  9.2

  Remedies Upon Event of Default      102123  

Article 10 THE AGENT

     104125  
 

Section  10.1

  Appointment and Authority      104125  
 

Section  10.2

  Rights as a Lender      105126  
 

Section  10.3

  Exculpatory Provisions      105126  
 

Section  10.4

  Reliance by Agent      106127  
 

Section  10.5

  Delegation of Duties      106128  

 

iii


            

 

Section  10.6

  Resignation of the Agent      106128  
 

Section  10.7

  Non-Reliance on the Agent and Other Lenders      108130  
 

Section  10.8

  No Other Duties, Etc      108130  
 

Section  10.9

  The Agent May File Proofs of Claim      108130  
 

Section  10.10

  Collateral and Guaranty Matters      109131  
 

Section  10.11

  Secured Hedging Agreements; Bank Products      110132  
 

Section  10.12

  Reimbursement by Lenders      110132  
 

Section  10.13

  ERISA Matters      110133  
 

Section  10.14

  Recovery of Erroneous Payments      134  

Article 11 MISCELLANEOUS

     111137  
 

Section  11.1

  Cumulative Remedies; No Waiver      111137  
 

Section  11.2

  Amendments; Consents      112137  
 

Section  11.3

  Costs and Expenses      113139  
 

Section  11.4

  Nature of Lenders’ Obligations      114140  
 

Section  11.5

  Survival of Representations and Warranties      114140  
 

Section  11.6

  Notices      114140  
 

Section  11.7

  Execution of Loan Documents      114140  
 

Section  11.8

  Binding Effect; Assignment      114141  
 

Section  11.9

  Right of Setoff      119146  
 

Section  11.10

  Sharing of Setoffs      119146  
 

Section  11.11

  Indemnity by Borrower      120147  
 

Section  11.12

  Nonliability of the Lenders      121148  
 

Section  11.13

  No Third Parties Benefited      121149  
 

Section  11.14

  Confidentiality      121149  
 

Section  11.15

  Further Assurances      122149  
 

Section  11.16

  Integration      122150  
 

Section  11.17

  GOVERNING LAW; VENUE      122150  
 

Section  11.18

  Severability of Provisions      123151  
 

Section  11.19

  Headings      123151  
 

Section  11.20

  Time of the Essence      123151  
 

Section  11.21

  Hazardous Material Indemnity      123151  
 

Section  11.22

  DISPUTES      124152  
 

Section  11.23

  Purported Oral Amendments      124152  
 

Section  11.24

  Patriot Act      125152  
 

Section  11.25

  [Reserved]      125153  
 

Section  11.26

  Replacement of Lenders      125153  
 

Section  11.27

  Judgment Currency      125153  
 

Section  11.28

  Keepwell      126154  
 

Section  11.29

  Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions      126154  
 

Section  11.30

  Acknowledgement Regarding Any Supported QFCs      155  

 

iv


Exhibits

 

A      -      Form of Assignment and Acceptance
B      -      Form of Compliance Certificate
C      -      Form of Pricing Certificate
D      -      Form of Request for Loan
E-1      -      Form of Revolving Note
E-2      -      Form of Swing Line Note
F-1      -      Form of Affiliate Subordination Agreement
F-2      -      Form of Subordination Agreement
G-1      -      Intercreditor Terms (Pari Passu)
G-2      -      Intercreditor Terms (Junior)
H      -      Form of Increased Commitment Letter
I      -      Form of Joinder Agreement
J      -      Form of New Term Facility Supplement
K      -      Form of Extended Revolving Credit Facility Agreement
L      -      Form of Extended Term Facility Agreement
M      -      Form of Secured Party Designation Notice
N-1      -      Form of U.S. Tax Compliance Certificate
N-2      -      Form of U.S. Tax Compliance Certificate
N-3      -      Form of U.S. Tax Compliance Certificate
N-4      -      Form of U.S. Tax Compliance Certificate
O      -      Form of Subsidiary Guaranty
P      -      Form of Subsidiary Pledge Agreement
Q      -      Form of Subsidiary Security Agreement

Schedules

 

1.1    Lender Commitments
2.4    Existing Letters of Credit
4.4    Subsidiaries
4.8    Trade Names
4.10    Material Litigation
4.18    Hazardous Materials Matters
4.23    Communications Licenses
5.4    Insurance
6.9    Existing Liens
6.10    Existing Indebtedness and Guaranty Obligations

 

v


CREDIT AGREEMENT

Dated as of November 26, 2013

THIS CREDIT AGREEMENT is entered into by and among Viasat, Inc., a Delaware corporation (“Borrower”), each Lender (as hereafter defined), and MUFG Bank, Ltd. (as successor to MUFG Union Bank, N.A., a member of MUFG, a global financial group in its capacities as administrative agent and collateral agent), (“MUFG”), as administrative agent and collateral agent to the Lenders (in such capacities and together with any successors or assigns, the “Agent”), with reference to the following facts:

RECITALS

WHEREAS, Borrower has requested that the Lenders provide a credit facility for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereby agree as follows:

ARTICLE 1

DEFINITIONS AND ACCOUNTING TERMS

Section 1.1 Defined TermsDefined Terms. As used in this Agreement, the following terms shall have the respective meanings set forth below:

2025 Senior Notes” means the $700,000,000 in aggregate principal amount of 5.625% senior unsecured notes due 2025 issued by Borrower and any Permitted Refinancing Indebtedness thereof, and includes the associated Guaranty Obligations of the Subsidiary Guarantors in respect thereof.

“2027 Senior Secured Notes” means the $600,000,000 in aggregate principal amount of 5.625% senior secured notes due 2027 issued by Borrower and any Permitted Refinancing Indebtedness thereof, and includes the associated Guaranty Obligations of the Subsidiary Guarantors in respect thereof.

“2028 Senior Notes” means the $400,000,000 in aggregate principal amount of 6.500% senior notes due 2028 issued by Borrower and any Permitted Refinancing Indebtedness thereof, and includes the associated Guaranty Obligations of the Subsidiary Guarantors in respect thereof.

Acceptable Exclusions” means:

(1) war, invasion or hostile or warlike action in time of peace or war, including action in hindering, combating or defending against an actual, impending or expected attack by:

 

  (a)

any government or sovereign power (de jure or de facto),

 

1


  (b)

any authority maintaining or using a military, naval or air force,

 

  (c)

a military, naval or air force, or

 

  (d)

any agent of any such government, power, authority or force;

(2) any anti-satellite device, or device employing atomic or nuclear fission and/or fusion, or device employing laser or directed energy beams;

(3) insurrection, strikes, labor disturbances, riots, civil commotion, rebellion, revolution, civil war, usurpation, or action taken by a government authority in hindering, combating or defending against such an occurrence, whether there be declaration of war or not;

(4) confiscation, nationalization, seizure, restraint, detention, appropriation, requisition for title or use by or under the order of any government or governmental authority or agent (whether secret or otherwise or whether civil, military or de facto) or public or local authority or agency (whether secret or otherwise);

(5) nuclear reaction, nuclear radiation, or radioactive contamination of any nature, whether such loss or damage be direct or indirect, except for radiation naturally occurring in the space environment;

(6) electromagnetic or radio frequency interference, except for physical damage to the Covered Satellite directly resulting from such interference;

(7) willful or intentional acts of the named insured designed to cause loss or failure of the Covered Satellite;

(8) any act of one or more Persons, whether or not agents of a sovereign power, for political or terrorist purposes and whether the loss, damage or failure resulting therefrom is accidental or intentional;

(9) any unlawful seizure or wrongful exercise of control of the Covered Satellite and/or launch vehicle made by any Person or Persons acting for political or terrorist purposes;

(10) loss of income or revenue, incidental damages or indirect and/or consequential loss;

(11) extra expenses, except to the extent this exclusion conflicts with the insuring agreements’ provisions for corrective measures;

(12) third party liability;

(13) loss of a redundant component(s) that does not cause a transponder or beam failure; and

 

2


(14) such other similar exclusions or modifications to the foregoing exclusions as either may be customary for policies of such type as of the date of issuance or renewal of such coverage or may be otherwise reasonably acceptable to Borrower.

Acquisition” means any transaction, or any series of related transactions, consummated after the Closing Date, by which Borrower and/or any of its Restricted Subsidiaries directly or indirectly (a) acquires any ongoing business or all or substantially all of the assets of any Person (other than Borrower or any of its Restricted Subsidiaries), whether through a purchase of assets, a merger or otherwise, (b) acquires control of securities of a Person representing more than 50% of the ordinary voting power for the election of directors or other governing body if the business affairs of such Person are managed by a board of directors or other governing body or (c) acquires control of more than 50% of the ownership interest in any partnership, joint venture, limited liability company, business trust or other Person that is not managed by a board of directors or other governing body.

Advance” means any advance made or to be made by any Lender to Borrower as provided in Article 2 or pursuant to the terms of any New Term Facility Supplement or Extended Facility Agreement, and includes each Alternate Base Rate Advance and Eurodollar Rateeach Term SOFR Advance.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

Affiliate” means, as to any Person, any other Person which directly or indirectly controls, or is under common control with, or is controlled by, such Person. As used in this definition, “control” (and the correlative terms, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise); provided that, in any event, any Person that owns, directly or indirectly, 10% or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation that has more than 100 record holders of such securities, or 10% or more of the partnership or other ownership interests of any other Person that has more than 100 record holders of such interests, will be deemed to be an Affiliate of such corporation, partnership or other Person.

Affiliate Subordination Agreement” means a subordination agreement between Borrower or a Subsidiary Guarantor, as applicable, as the borrower thereunder and a Subsidiary that is not a Subsidiary Guarantor, as the lender thereunder substantially in the form attached hereto as Exhibit F-1 with such modifications, if any, subject to the Agent’s reasonable approval.

Agent” shall have the meaning provided in the introductory paragraph to this Agreement.

Agent Fee Letter” means that certain letter agreement dated October 28, 2013 between the Agent and Borrower.

Agent’s Office” means the Agent’s address as set forth on the signature pages of this Agreement, or such other address as the Agent hereafter may designate by written notice to Borrower and the Lenders.

 

3


Aggregate In-Orbit Insurance Amount” means 75% of the aggregate net book value of all in-orbit Covered Satellites other than Excluded Satellites. For the purposes of this definition, aggregate net book value with respect to a Covered Satellite (i) may, at the option of the Borrower, take into account that the net book value of a Covered Satellite of any Restricted Subsidiary that is not a Loan Party can be determined based on the depreciated replacement cost of the Covered Satellite and (ii) shall exclude any liability of a satellite purchaser to pay the satellite manufacturer any satellite performance incentive payments and any liability of a satellite manufacturer to pay the satellite purchaser any satellite performance warranty paybacks.

Agreement” means this Credit Agreement.

Alternate Base Rate” means, as of any date of determination, the rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the highest of (a) the Prime Rate in effect on such date, (b) the Federal Funds Rate in effect on such date plus 1/2 of 1% (50 basis points) or (c) the Eurodollar RateTerm SOFR for a Term SOFR Period of one month in effect on such date plus 1% (100 basis points).

Alternate Base Rate Advance” means an Advance under the Commitment made hereunder, under a New Term Facility Supplement or an Extended Facility Agreement and specified to be an Alternate Base Rate Advance (including a Swing Line Advance) in accordance with Article 2 or under such New Term Facility Supplement or an Extended Facility Agreement, as applicable.

Alternate Base Rate Loan” means a Loan made hereunder, under a New Term Facility Supplement or an Extended Facility Agreement and specified to be an Alternate Base Rate Loan, or a Swing Line Advance; in each case, in accordance with Article 2 or pursuant to the terms of such New Term Facility Supplement or an Extended Facility Agreement, as applicable.

AML Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Lender, Borrower, Borrower’s Subsidiaries or any guarantor or any other party providing credit support in respect of any Person’s obligations under the Loan Documents from time to time concerning or relating to anti-money laundering.

Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to Borrower or any of its Subsidiaries from time to time concerning or relating to bribery, money laundering or corruption.

Applicable Margin” means

(a) (a) with respect to any Advances and Loans that are subject to a New Term Facility Supplement, the percentages per annum set forth in the applicable New Term Facility Supplement,

(b) (b) with respect to any Advances and Loans that are subject to an Extended Facility Agreement, the percentages per annum set forth in the applicable Extended Facility Agreement, and

(c) (c) otherwise, for each Pricing Period commencing on or after the Seventh Amendment Effective Date, the following percentages per annum, based upon the Total Leverage

 

4


Ratio (calculated to include letters of credit as provided in the definition of “Funded Debt”) as of the last day of the Fiscal Quarter most recently ended prior to the commencement of that Pricing Period:

 

Applicable

Pricing

Level

  

Total Leverage Ratio

  

Alternate

Base Rate

Loans

   Eurodollar
Rate
Term
SOFR
  Loans
   Commitment
Fee
I    Less than 2.50 to 1.00    25100 bps    125200 bps    17.5 bps
II    Greater than or equal to 2.50 to 1.00, but less than 3.25 to 1.00    50125 bps    150225 bps    20 bps
III    Greater than or equal to 3.25 to 1.00, but less than 4.00 to 1.00    75150 bps    175250 bps    25 bps
IV    Greater than or equal to 4.00 to 1.00, but less than 4.75 to 1.00    100175 bps    200275 bps    30 bps
V    Greater than or equal to 4.75 to 1.00    125200 bps    225300 bps    35 bps

provided that (i) in the event that Borrower does not deliver a Pricing Certificate with respect to any Pricing Period prior to the commencement of such Pricing Period, then until such Pricing Certificate is delivered, the Applicable Pricing Level for that Pricing Period shall be Pricing Level V, but once Borrower has delivered a Pricing Certificate with respect to such Pricing Period, then any resulting change in the Applicable Pricing Level shall be made retroactively to the beginning of such Pricing Period, and (ii) the determination of the Applicable Pricing Level for any period shall be subject to the provisions of Section 3.8(b). TheNotwithstanding the foregoing, the Applicable Margin in effect from the FourthSeventh Amendment Effective Date through the date a Pricing Certificate is required to be delivered hereunder with respect to the first Pricing Period commencing after the FourthSeventh Amendment Effective Date shall be determined based upon Applicable Pricing Level IV.

Approved Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

Arrangers” means Merrill Lynch, Pierce, Fenner & Smith 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)BofA Securities, Inc., MUFG, JPMorgan Chase Bank, N.A., and SunTrust Robinson HumphreyTruist Securities, Inc. in their capacities as Joint Lead Arrangers.

Assignment and Acceptance” means an Assignment and Acceptance substantially in the form of Exhibit A.

 

5


“Assumed Acquisition Indebtedness” means Indebtedness of a Person acquired in a Permitted Acquisition which is outstanding at the time of such acquisition (other than Indebtedness incurred solely in contemplation of such acquisition).

“Auto-Extension Letter of Credit” has the meaning given in Section 2.4(a)(3).

Available Basket Amount” means, at any date of determination, an amount (which shall not be less than $0) determined on a cumulative basis equal to the difference between: (a) the sum (without duplication) of: (i) $35,000,000, plus (ii) Cumulative Consolidated Net Income (which shall not be less than zero), plus (iii) the aggregate amount of dividends and distributions received by Borrower or its Restricted Subsidiaries in the form of Cash or Cash Equivalents on or prior to such date from Investments acquired or made utilizing the Available Basket Amount, plus (iv) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Second Amendment Effective Date, the fair market value of the Investment in such Unrestricted Subsidiary at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary (which shall not exceed the original amount of such Investment), plus (v) the Net Cash Proceeds received from any issuance or sale of its Equity Interests occurring after the Closing Date (other than issuances of Disqualified Stock and issuances or sales pursuant to an employee stock ownership plan or other employee benefit plan and excluding Net Cash Proceeds of any issuance or sale of Equity Interests for a specifically identified purpose that were expended for such specifically identified purpose without a corresponding reduction of the Available Basket Amount), plus (vi) the after-tax amount (after taking into account any available tax credit or deductions and any tax sharing arrangements) of all Distributions received in Cash by the Loan Parties after the Closing Date that are attributable to their Equity Interests in any Joint Venture or any Subsidiary that is not a Subsidiary Guarantor, plus (vii) all Net Cash Sales Proceeds received from Dispositions permitted by this Agreement, minus (b) the aggregate amount of all Investments, Capital Expenditures, Distributions and payments in respect of Subordinated Obligations, in each case to the extent made after the Closing Date with amounts available under the Available Basket Amount.

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 EEAAffected Financial Institution.

“Bail-In Legislation” means, (a) 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, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

Bank Product Lender” means any Lender or any Affiliate of a Lender providing Bank Products.

 

6


Bank Products” means any one or more of the following types of services or facilities extended to Borrower or any Restricted Subsidiary by any Lender or any Affiliate of a Lender: (i) credit cards, debit cards and p-cards (including purchasing cards and commercial cards); (ii) automated clearing house transfer or funds transfer; (iii) overdrafts; (iv) deposit accounts; and (v) zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services; provided that for any of the foregoing to be included as a “Bank Product” on any date of determination by the Agent of the Secured Obligations, the applicable Bank Product Lender (other than the Agent or an Affiliate of the Agent) must have delivered a Secured Party Designation Notice to the Agent prior to such date of determination.

Banking 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 Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

Bankruptcy Event” means, with respect to any Person, (i) a court or Governmental Agency having jurisdiction in the premises shall enter a decree or order for relief in respect of such Person in an involuntary case under any Debtor Relief Law now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or for any substantial part of its property or ordering the winding up or liquidation of its affairs, (ii) an involuntary case under any applicable Debtor Relief Law now or hereafter in effect is commenced against such Person and such petition remains unstayed and in effect for a period of 60 consecutive days, (iii) such Person shall commence a voluntary case under any applicable Debtor Relief Law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or any substantial part of its property or make any general assignment for the benefit of creditors or (iv) such Person shall admit in writing its inability to pay its debts generally as they become due or any action shall be taken by such Person in furtherance of any of the aforesaid purposes.

Basel III” 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.

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

7


“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

Borrower” shall have the meaning provided in the introductory paragraph to this Agreement.

Borrower Pledge Agreement” means the Pledge Agreement, dated as of the date hereof, between Borrower and the Agent.

Borrower Security Agreement” means the Security Agreement, dated as of the date hereof, between Borrower and the Agent.

Capital Expenditure” means any expenditure by Borrower or any of its Restricted Subsidiaries for or related to fixed assets or purchased intangibles that is treated as a capital expenditure under GAAP, including any amount which is required to be treated as an asset subject to a Capital Lease Obligation. The amount of Capital Expenditures in respect of fixed assets purchased or constructed by Borrower or any of its Restricted Subsidiaries in any fiscal period (a) shall be net of (i) any net sales proceeds received during such fiscal period by Borrower or such Restricted Subsidiary for fixed assets sold by Borrower or such Restricted Subsidiary and (ii) any casualty insurance proceeds received during such fiscal period by Borrower or such Restricted Subsidiary for casualties related to real property, equipment or fixed assets and applied to the repair or replacement thereof and (b) shall not include (i) Permitted Acquisitions, (ii) expenditures designated as funded with Net Cash Proceeds of any issuance or sale of Equity Interests and (iii) up to $10,000,000 of expenditures in any Fiscal Year for or related to leasehold improvements with respect to any of Borrower’s or its Restricted Subsidiaries’ facilities.

Capital Lease” means, with respect to any Person, any lease of, or other arrangement conveying the right to use, any property (whether real, personal or mixed) by such Person as lessee that has been or is required to be accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP; provided that, “Capital Lease” shall not include any satellite capacity, bandwidth, beam, transponder, thread or similar lease, rental or right of use arrangements or other leases of all or a portion of a satellite with a third party to the extent required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP that either (i) have a term of five (5) years or less, or (ii) have a term of more than five (5) years and for which such Person has a commitment in place from an unaffiliated customer to use all or a substantial portion of the leased item for a substantially commensurate period.

Capital Lease Obligations” means all monetary obligations of a Person under any Capital Lease.

Cash” means, when used in connection with any Person, all monetary and non-monetary items owned by that Person that are treated as cash in accordance with GAAP, consistently applied.

Cash Collateralize” means (i) to pledge and deposit with or deliver to the Agent, for the benefit of one or more of the Issuing Lender or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash in the amount equal to 103% of the face amount of the relevant Letter of Credit, (ii) a “back-up” standby letter of credit issued by an institution reasonably acceptable to the Agent and the Issuing Lender, or (iii)

 

8


such other credit support as shall be acceptable to the Agent and the Issuing Lender, in each case pursuant to documentation in form and substance reasonably satisfactory to the Agent and the Issuing Lender. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

Cash Equivalents” means money-market instruments of the type described in Borrower’s Investment Policy, a copy of which has been previously provided to the Agent.

Cash Interest Expense” means Interest Expense that is paid or currently payable in Cash.

Certificate” means a certificate signed by a Senior Officer or Responsible Official (as applicable) of the Person providing the certificate.

Change in Control” means (a) any transaction or series of related transactions in which any Unrelated Person acquires beneficial ownership (within the meaning of Rule 13d-3(a)(l) under the Securities Exchange Act of 1934, as amended), directly or indirectly, of 35% or more of the outstanding Common Stock, (b) Borrower conveys, transfers or leases all or substantially all of its and its Restricted Subsidiaries’ properties and assets, taken as a whole, to any Person, (c) Borrower consolidates with or merges into another Person or any Person consolidates with or merges into Borrower, in either event pursuant to a transaction in which the outstanding Common Stock is changed into or exchanged for cash, securities or other property, with the effect that any Unrelated Person becomes the beneficial owner, directly or indirectly, of 35% or more of Common Stock, (d) during any period of 24 consecutive months, individuals who at the beginning of such period constituted the board of directors of Borrower (together with any new or replacement directors whose election or appointment by the board of directors, or whose nomination for election, was approved by a vote of at least a majority of the directors then still in office who were either directors at the beginning of such period or whose election or appointment or nomination for reelection was previously so approved) cease for any reason to constitute a majority of the directors then in office or (e) the sale or other Disposition of the assets of the Borrower and its Restricted Subsidiaries constituting in the aggregate 50% or more of the Consolidated Total Assets as of the date of any such sale or other disposition. For purposes of the foregoing, the term “Unrelated Person” means any Person other than (i) a Restricted Subsidiary of Borrower or (ii) an employee stock ownership plan or other employee benefit plan covering the employees of Borrower and its Restricted Subsidiaries.

Change in Law” means the occurrence, after the date hereof, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Governmental Agency or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Agency; provided that notwithstanding anything herein to the contrary, (i) Dodd-Frank and (ii) Basel III shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Claim” has the meaning given in Section 11.22.

Closing Date” means November 26, 2013.

“CME” means CME Group Benchmark Administration Limited.

 

9


Code” means the Internal Revenue Code of 1986, as amended or replaced and as in effect from time to time.

Collateral” means all of the collateral covered by the Security Agreements.

Commercial Letter of Credit” means each Letter of Credit issued to support the purchase of goods and/or services by Borrower or any of its Restricted Subsidiaries which is determined to be a commercial letter of credit by the Issuing Lender.

Commitment” means, with respect to any Lender, such Lender’s Revolving Commitment, Extended Revolving Commitment, New Term Loan Commitment and Extended Term Loan Commitment.

Commitment Increase Notice” has the meaning given in Section 2.8(a).

Commodity Agreement” means any commodity futures contract, commodity swap, commodity option or other similar agreement or arrangement entered into by Borrower or any of its Restricted Subsidiaries designed or intended to protect Borrower or any of its Restricted Subsidiaries against fluctuations in the price of commodities actually used in the ordinary course of business of Borrower and/or its Restricted Subsidiaries.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

Common Stock” means the common stock of Borrower or its successor.

“Communication” means this Agreement, any Loan Document and any document, any amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.

Communications Act” means the Communications Act of 1934, as amended, and any successor federal statute, and the rules and regulations and published policies of the FCC promulgated thereunder.

Communications Laws” means all Laws issued or promulgated by a Governmental Agency relating to the use of radiofrequency spectrum, the launch, orbit and control of space stations, earth stations, or other communications facilities, or the offering or provision of communications, telecommunications or information services.

Communications License” means any license, authorization, approval, order, consent or permit issued or granted by any Governmental Agency pursuant to Communications Laws, including the Communications Licenses listed on Schedule 4.23.

Compliance Certificate” means a certificate in the form of Exhibit B, properly completed and signed by a Senior Officer of Borrower.

“Conforming Changes” means, with respect to the use, administration of or any conventions associated with Term SOFR, SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Alternate Base Rate”

 

10


(only with respect to clause (c) of the definition thereof), “SOFR”, “Term SOFR”, “Term SOFR Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of “Banking Day”, “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Agent (in consultation with Borrower), to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document (in consultation with Borrower)).

Consolidated Total Assets” means, as of any date of determination, the total amount of all assets of Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the consolidated balance sheet of Borrower as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available.

Contractual Obligation” means, as to any Person, any material provision of any outstanding security issued by that Person or of any material agreement, instrument or undertaking to which that Person is a party or by which it or any of its Property is bound.

“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Covered Party” has the meaning assigned to such term in Section 11.30.

“Covered Satellite” means any Satellite or a portion of a Satellite, as applicable, with respect to which Borrower or any other Loan PartyRestricted Subsidiary owns or retains risk of loss.

Credit Issuance” means the making of an Advance or the issuance of a Letter of Credit.

Cumulative Consolidated Net Income” means, as of any date of determination, 50% of the Net Income of Borrower and its Restricted Subsidiaries for the period (taken as one accounting period) beginning on the first day of the Fiscal Quarter in which the Second Amendment Effective Date occurs to the end of Borrower’s most recently ended Fiscal Quarter for which financial statements prepared on a consolidated basis in accordance with GAAP are available (or, in the case such Net Income for such period is a deficit, minus 100% of such deficit).

Currency Agreement” means any foreign exchange contract, currency swap agreement, futures contract or option contract with respect to foreign exchange rates or currency values, or other similar agreement entered into by Borrower or any of its Restricted Subsidiaries.

 

11


Customer Equipment” means customer premises equipment, any other customer receiving and transmitting equipment and any other equipment associated with the delivery of services (e.g., aircraft and maritime terminal equipment).

“Daily Simple SOFR” with respect to any applicable determination date means SOFR as published on such date on the Federal Reserve Bank of New York’s website (or any successor source).

Debt Fund Affiliate” means an Affiliate of a Disqualified Institution that is a bona fide debt fund that is engaged in making, purchasing holding or otherwise investing in a diversified portfolio of commercial loans and similar extensions of credit in the ordinary course of business and whose managers have fiduciary duties to the investors in such fund independent of, or in addition to, their duties to such Disqualified Institutions.

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

Default” means any event that, with the giving of any applicable notice or passage of time specified in Section 9.1, or both, would be an Event of Default.

Default Rate” has the meaning given in Section 3.1(d).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

Defaulting Lender” means, subject to Section 2.10(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Banking Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Agent and 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 Agent, the Issuing Lender, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Banking Days of the date when due, (b) has notified Borrower, the Agent, the Issuing Lender or the Swing Line Lender 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 Banking Days after written request by the Agent or Borrower, to confirm in writing to the Agent and 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 Agent and 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,

 

12


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 Agency 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 Agency) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.10(b)) upon delivery of written notice of such determination to Borrower, the Issuing Lender, the Swing Line Lender and each Lender.

Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.

Delaware Divided LLC” means any Delaware LLC which has been formed upon consummation of a Delaware LLC Division.

“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.

Designated Deposit Account” means a deposit account to be maintained by Borrower with the Agent or one of its Affiliates, as from time to time designated by Borrower by written notification to the Agent.

Designated Eurodollar Market means the London interbank eurodollar market.

Designated Noncash Consideration” means the fair market value of noncash consideration received by the Borrower or one of its Restricted Subsidiaries in connection with a Disposition that is so designated as Designated Noncash Consideration by the Borrower pursuant to a certificate of a Senior Officer, setting forth the basis of such valuation, less the amount of Cash or Cash Equivalents received in connection with a subsequent sale or other disposition of or payment or collection on such Designated Noncash Consideration.

Disposition” means the sale, transfer or other disposition in any single transaction or series of related transactions of any asset, or group of related assets, (including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division) of Borrower or any of its Restricted Subsidiaries the aggregate fair market value (as reasonably determined in good faith by a Senior Officer of Borrower) of which is more than the Disposition Threshold; provided that none of the following shall constitute a Disposition: (i) inventory or other assets sold, transferred or otherwise disposed of in the ordinary course of business of Borrower or its Restricted Subsidiaries, (ii) fixed assets or equipment sold, transferred or otherwise disposed of where substantially similar fixed assets or equipment in replacement thereof has theretofore been acquired, or thereafter within 90 days is acquired, by Borrower or any of its Restricted Subsidiaries,

 

13


(iii) assets sold, transferred or otherwise disposed of that are (x) obsolete, surplus, damaged or worn out or (y) are no longer useful in the business of Borrower and its Restricted Subsidiaries, and (iv) dispositions in the form of licensing or sublicensing of intellectual property or other general intangibles or licenses, leases or subleases of other property in the ordinary course of business; and, provided further that, for purposes of the calculation of the Available Basket Amount and clause (xii) of the definition of EBITDA only, the requirement that a sale, transfer or other disposition have an aggregate fair market value of more than the Disposition Threshold to constitute a “Disposition” shall not apply.

Disposition Threshold” means, as of any date of determination, an amount equal to the greater of (i) $25,000,000 and (ii) 1.5% of Consolidated Total Assets.

Disqualified Institution” means (a) a Person who is a competitor of Borrower (or any division, operating unit or Subsidiary thereof) and whose name is specifically set forth on a list provided by Borrower to the Agent, for distribution to the Lenders (as such list may be amended in writing from time to time, by Borrower delivered to the Agent) and (b) any Person (other than a competitor of Borrower (or any division, operating unit of Subsidiary thereof)) whose name is specifically set forth on a list provided by Borrower to the Agent at the time of delivery of a Commitment Increase Notice with respect to the incurrence of a New Term Loan, for distribution to the Lenders, together with the Affiliates of such Disqualified Institution that are readily identifiable as an Affiliate of such Disqualified Institution on the basis of such Affiliate’s name; provided that, in each case described in the foregoing clauses (a) and (b), such designation shall become effective one day after the date that such written designation to the Agent is made available to the Lenders on DebtDomain, IntraLinks, Syndtrak or another similar electronic system but which shall not apply retroactively to disqualify any Persons that have previously become a Lender; provided, further, that (i) the list of Disqualified Institutions may not be amended after the occurrence, and during the continuance, of an Event of Default under Section 9.1(a), 9.1(b) or 9.1(j)) and (ii) a “Disqualified Institution” shall not include any Debt Fund Affiliates.

Disqualified Stock” means any Equity Interests (but excluding any debt security which is convertible, or exchangeable, for capital stock), which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the latest applicable Maturity Date.

Distribution” means, with respect to Equity Interests of any Person, (a) any payment in Cash or Property for the retirement, redemption, purchase or other acquisition by such Person of any such Equity Interest (but, for the avoidance of doubt, excluding (i) any amount that represents all or a portion of the exercise or exchange price deemed paid by such Person upon an exercise or exchange of warrants, options or other rights to purchase or acquire any Equity Interests, (ii) any amount deemed paid by such Person with respect to withholding taxes or (iii) any amount paid in lieu of issuance of fractional shares), (b) the declaration or (without duplication) payment by such Person of any dividend in Cash or in Property on or with respect to any such Equity Interest, (c) any Investment by such Person in the holder of 5% or more of any such Equity Interests if a purpose of such Investment is to avoid characterization of the transaction as a Distribution and (d)

 

14


any other payment in Cash or Property by such Person constituting a distribution under applicable Laws with respect to such Equity Interests.

Dodd-Frank” means the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith.

Dollar Equivalent” means, on any date of determination, with respect to the amount available to be drawn under any Foreign Currency Letter of Credit, the equivalent amount thereof in Dollars as determined by the Issuing Lender of such Letter of Credit on such date on the basis of the Spot Rate for the purchase of Dollars with such Permitted Foreign Currency.

Dollars” or “$” means United States dollars.

Domestic Restricted Subsidiary” means a Domestic Subsidiary that is a Restricted Subsidiary.

Domestic Subsidiary” means a Subsidiary organized under the laws of the United States or any state or territory thereof or the District of Columbia.

Earlier Revolving Commitment Maturity Date” has the meaning given in Section 2.4(l).

EBITDA” means, for any period, the sum of (a) Net Income plus (b) without duplication and, other than in the case of clauses (x), (xv) and (xviii), to the extent deducted in determining Net Income for such period:

 

  (i)

Interest Expense,

 

  (ii)

expense for taxes paid or accrued,

 

  (iii)

depreciation,

 

  (iv)

amortization,

 

  (v)

costs, charges, and expenses as a result of the disposition of Customer Equipment,

(vi) any unusual, extraordinary or nonrecurring losses so long as the total add-back pursuant to this clause (b)(vi) in any four consecutive fiscal quarter period, together with any add-backs pursuant to clause (b)(xviii) below and clause (b)(xix) below for such period and the total increase to EBITDA as a result of pro forma “run-rate” cost savings, operating expense reductions and synergies adjustments pursuant to the definition of “Pro Forma Basis” for such period, shall be limited to 20.0% of EBITDA for such period (determined prior to giving effect to the addbacks contemplated by this clause (b)(vi), clause (b)(xviii) below and clause (b)(xix) below and increases to EBITDA as a result of pro forma “run-rate” cost savings, operating expense reductions and synergies adjustments pursuant to the definition of “Pro Forma Basis”),

(vii) any non-cash charges arising from compensation expense as a result of the adoption of Financial Accounting Standards Board Statement 123 (Revised 2004), “Share-Based

 

15


Payment”, which requires certain stock-based compensation to be recorded as expense within Borrower’s consolidated statement of operations,

(viii) non-recurring expenses for professional services, regulatory clearances and filings, transfer fees, severance payments and other similar closing costs (to the extent such expenses are not capitalized by Borrower) incurred in connection with Permitted Acquisitions or similar Investments, whether or not consummated,

(ix) [reserved]the net loss (income) of any Person that is accounted for by the equity method of accounting or any loss (income) from Investments recorded using the equity method of accounting,

(x) any expenses that have been reimbursed by third parties during such period, including third party insurers, to the extent such reimbursements are not included in determining Net Income,

(xi) fees, costs, expenses, commissions and original issue discounts paid, deducted or accrued by Borrower in connection with the transactions contemplated by this Agreement,

(xii) reasonable fees, costs, expenses, original issue discounts, premiums (including tender premiums, prepayment penalties, breakage costs, and other similar amounts paid to facilitate or effect the early repayment or redemption of, or tender for, Indebtedness) and commissions, in each case that are or have been incurred, paid or deducted in connection with any actual or proposed permitted issuance or refinancing of Indebtedness or permitted issuance of Equity Interests or any actual or proposed permitted Disposition, and all reasonable fees, costs and expenses associated with the actual or proposed registration or exchange of any permitted debt or equity securities, in each case, whether or not such issuance, refinancing, Disposition, registration or exchange is consummated,

(xiii) reasonable fees, costs and expenses incurred in connection with any amendment, supplement or modification to Indebtedness (or any agreement, indenture or other instrument relating thereto) permitted hereby, in each case, whether or not consummated,

(xiv) any non-cash loss attributable to the mark-to-market movement in the valuation of Hedging Agreements nor prohibited under Article 6 pursuant to FASB Accounting Standards Codification 815 — “Derivatives and Hedging”,

(xv) proceeds from any business interruption insurance received during such period to the extent such proceeds are not already included in Net Income,

(xvi) losses from discontinued operations in accordance with GAAP,

(xvii) cash and non-cash charges resulting from the application of FASB Accounting Standards Codification 805 – “Business Combinations” (including with respect to earn-outs in connection with any Permitted Acquisition),

 

16


(xviii) the amount of cost savings and other operating improvements or synergies (net of the amount of actual benefits realized during such period) projected by Borrower in good faith to be realized during the next four consecutive Fiscal Quarters (which cost savings shall be added to EBITDA as so projected until fully realized and calculated on a Pro Forma Basis as though such cost savings, operating improvements and synergies had been realized on the first day of such period) as a result of an EBITDA Event or related to restructuring, cost saving or similar initiatives of Borrower, so long as (A) such cost savings are reasonably identifiable and factually supportable, (B) the actions causing such cost savings in connection with an EBITDA Event or related to restructuring, costs saving or similar initiatives are taken within 12 months of such EBITDA Event or the commencement of such restructuring, cost saving or similar initiative and the Agent shall have received a Certificate of a Responsible Official that such actions have been taken within such time period, (C) the cost savings described in this clause (xviii) shall only be added back until the date that is 24 months from the date of the applicable EBITDA Event or restructuring, cost saving or similar initiative and (D) the total add-back pursuant to this clause (b)(xviii) in any four consecutive Fiscal Quarter period, together with any add-backs pursuant to clause (b)(vi) above and clause (b)(xix) below for such period and the total increase to EBITDA as a result of pro forma “run-rate” cost savings, operating expense reductions and synergies adjustments pursuant to the definition of “Pro Forma Basis” for such period, shall be limited to 20.0% of EBITDA for such period (determined prior to giving effect to the addbacks contemplated by this clause (b)(xviii), clause (b)(vi) above and clause (b)(xix) below and increases to EBITDA as a result of pro forma “run-rate” cost savings, operating expense reductions and synergies adjustments pursuant to the definition of “Pro Forma Basis”),

(xix) transition, business optimization or restructuring charges and integration costs, accruals or reserves and other unusual or non-recurring charges (including charges directly related to implementation of cost-savings initiatives), including, those related to severance, relocation, signing costs, signing, retention or completion bonuses, opening and closing/consolidation/integration of facilities and curtailments or modifications to employee benefits plans so long as the total add-back pursuant to this clause (b)(xix) in any four consecutive Fiscal Quarter period, together with any add-backs pursuant to clause (b)(vi) above and clause (b)(xviii) above for such period and the total increase to EBITDA as a result of pro forma “run-rate” cost savings, operating expense reductions and synergies adjustments pursuant to the definition of “Pro Forma Basis” for such period, shall be limited to 20.0% of EBITDA for such period (determined prior to giving effect to the addbacks contemplated by this clause (b)(xix), clause (b)(vi) above and clause (b)(xviii) above and increases to EBITDA as a result of pro forma “run-rate” cost savings, operating expense reductions and synergies adjustments pursuant to the definition of “Pro Forma Basis”),

(xx) any other non-cash charges (other than the write-down of current assets) for such period, including goodwill and other intangible assets, impairment charges or write-offs, stock compensation and non-cash income or expense on benefit plan obligations;

minus (c) to the extent included in Net Income, (i) any non-cash gains, (ii) the amount of any subsequent cash payments in respect of any non-cash charges described in the preceding clause (b)(vii), (iii) interest income, (iv) income or gains from discontinued operations in accordance with GAAP (other than if so classified on the basis that it is being held for sale unless such sale has actually occurred during such period) and (v) other non-cash income for such period; all

 

17


calculated for Borrower and its Restricted Subsidiaries on a consolidated basis. Notwithstanding the foregoing, Borrower may, in its sole discretion, elect not to add items back in the determination of EBITDA pursuant to clauses (b)(xviii) and/or (b)(xix) for any period.

EBITDA Event” means (i) any Permitted Acquisition or similar Investment, the aggregate consideration with respect to which is in excess of $25,000,000, (ii) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary, (iii) any designation (or redesignation) of an Unrestricted Subsidiary as a Restricted Subsidiary, (iv) any Distribution on account of the Equity Interests of Borrower or (v) any Disposition of a Subsidiary, division or operating unit for which historical financial statements for the relevant period are available.

ECA Assets” means, collectively, (a) assets or services purchased by any ECA Borrower or ECA Guarantor with the proceeds of Permitted ECA Financing and relating to the design, installation, testing, launch, manufacture or operation of the ECA Project that is the subject of such Permitted ECA Financing and insurance relating thereto, (b) assets or services required or used to launch or operate the assets referenced in the foregoing clause (a), (c) project and construction contracts and Communications Licenses and other contracts, insurance policies, licenses, consents, permits and authorizations related to the assets or services referenced in the foregoing clause (a) (in each case in clauses (a), (b) and (c) to the extent such assets or services are required by the definitive documentation with respect to any Permitted ECA Financing to be collateral for such Permitted ECA Financing), (d) Equity Interests in ECA Borrowers and ECA Guarantors and (e) any of the foregoing assets, services or Equity Interests, to the extent such assets, services and/or Equity Interests are required by the definitive documentation with respect to any subsequent Permitted ECA Financing to be collateral for such Permitted ECA Financing (whether or not such Permitted ECA Financing is for the same ECA Project).

ECA Borrower” means any Subsidiary of Borrower that is identified in the definitive documentation with respect to any Permitted ECA Financing as a borrower of such Permitted ECA Financing and is not otherwise required to be or become a Subsidiary Guarantor pursuant to the terms hereof immediately prior to becoming a borrower of Permitted ECA Financing. Upon the repayment in full of all Permitted ECA Financings to which such ECA Borrower is a party, such ECA Borrower shall cease to be an ECA Borrower until such time, if any, that such Subsidiary of Borrower becomes a borrower with respect to any other Permitted ECA Financing.

ECA Guarantor” means any direct or indirect parent (other than Borrower) and any direct or indirect Subsidiary of an ECA Borrower or an ECA Guarantor, in each case that (a) is required by the definitive documentation with respect to any Permitted ECA Financing to guarantee any obligations of an ECA Borrower under any Permitted ECA Financing, and (b) is not otherwise required to be or become a Subsidiary Guarantor pursuant to the terms hereof immediately prior to becoming a guarantor of a Permitted ECA Financing. Upon the repayment in full of all Permitted ECA Financings to which such ECA Guarantor is a party, such ECA Guarantor shall cease to be an ECA Guarantor until such time, if any, that such Person becomes a guarantor with respect to any other Permitted ECA Financing.

ECA Lender” means any export credit agency, facility agent, administrative agent or lender, as the case may be, under a Permitted ECA Financing.

 

18


ECA Project” means, with respect to each Permitted ECA Financing, the Other Satellite Project to which such Permitted ECA Financing relates.

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.

“Electronic Copy” has the meaning assigned to such term in Section 11.7.

“Electronic Record” and “Electronic Signature” have the meanings assigned to them, respectively, by 15 USC § 7006, as it may be amended from time to time.

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.

Eligible Assignee” means (a) any Lender, (b) any Affiliate of a Lender, (c) any Approved Fund and (d) any other Person satisfying the requirements (including consent requirements) of Section 11.8(b); provided that no Disqualified Institution shall qualify as an Eligible Assignee unless approved in writing by Borrower (subject to Section 11.8(f)).

Eligible Cash and Cash Equivalents” means, as of any date of determination, the sum of, (i) to the extent positive, (x) non-domestic Cash and Cash Equivalents of Borrower and its Restricted Subsidiaries in an amount not to exceed the aggregate principal amount of Indebtedness of Foreign Restricted Subsidiaries outstanding on such date minus (y) $10,000,000, plus (ii) domestic Cash and Cash Equivalents of Borrower and its Restricted Subsidiaries in excess of $30,000,000. Notwithstanding the foregoing, Eligible Cash and Cash Equivalents shall not include Cash and Cash Equivalents subject to a Lien on Collateral securing letters of credit, bank guarantees or Hedging Agreements as contemplated in Section 6.9(k).

Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equivalent equity or ownership interests in any Person, and any option, warrant or other right entitling the holder thereof to purchase or otherwise acquire any such equity interest.

ERISA” means the Employee Retirement Income Security Act of 1974, and any regulations or rulings issued pursuant thereto, as amended or replaced and as in effect from time to time.

ERISA Affiliate” means each Person (whether or not incorporated) which is required to be aggregated with Borrower pursuant to Section 414 of the Code.

 

19


“ERISA Event” means (a) any “reportable event”, as defined in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) any failure by any Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each case whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) the incurrence by a Loan Party or any ERISA Affiliate of any liability under Title IV of ERISA (other than premiums due and not delinquent under Section 4007 of ERISA) with respect to the termination of any Plan or by application of Section 4069 of ERISA with respect to any terminated plan; (f) the receipt by a Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice to terminate any Plan or Plans or to appoint a trustee to administer any Plan, or to terminate or to appoint a trustee to administer any plan or plans in respect of which such Loan Party or ERISA Affiliate would be deemed to be an employer under Section 4069 of ERISA; (g) the incurrence by a Loan Party or any ERISA Affiliate of any liability with respect to its withdrawal or partial withdrawal from any Multiemployer Plan; (h) the receipt by a Loan Party or any ERISA Affiliate from a Multiemployer Plan of any notice concerning the imposition of Withdrawal Liability on a Loan Party or ERISA Affiliate; (i) the failure of a Loan Party or any ERISA Affiliate to pay when due, after the expiration of any applicable grace period, any installment payment with respect to any Withdrawal Liability; or (j) the withdrawal of a Loan Party or any ERISA Affiliate from a 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.

“Erroneous Payment” has the meaning assigned to it in Section 10.14(a).

“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 10.14(d)(i).

“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 10.14(d)(i).

“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 10.14(d)(i).

“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 10.14(e).

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.

Euro Broadband” means Euro Broadband Retail Sàrl, a Swiss corporation.

Eurodollar Banking Day” means any Banking Day on which dealings in Dollar deposits are conducted by and among banks in the Designated Eurodollar Market.

 

20


Eurodollar Lending Office” means, as to each Lender, its office or branch so designated by written notice to Borrower and the Agent as its Eurodollar Lending Office. If no Eurodollar Lending Office is designated by a Lender, its Eurodollar Lending Office shall be its office at its address for purposes of notices hereunder.

Eurodollar Market” means a regular established market located outside the United States of America by and among banks for the solicitation, offer and acceptance of Dollar deposits in such banks.

Eurodollar Obligations” means eurocurrency liabilities, as defined in Regulation D or any comparable regulation of any Governmental Agency having jurisdiction over any Lender.

Eurodollar Period” means, as to each Eurodollar Rate Loan, the period commencing on the date specified by Borrower pursuant to Section 2.1(c) and ending 1, 2, 3 or, if available, 6 months (or, with the written consent of all of the Lenders, any other period) thereafter, as specified by Borrower in the applicable Request for Loan; provided that:

(a) The first day of any Eurodollar Period shall be a Eurodollar Banking Day;

(b) Any Eurodollar Period that would otherwise end on a day that is not a Eurodollar Banking Day shall be extended to the immediately succeeding Eurodollar Banking Day unless such Eurodollar Banking Day falls in another calendar month, in which case such Eurodollar Period shall end on the immediately preceding Eurodollar Banking Day; and

(c) No Eurodollar Period shall extend beyond the Maturity Date applicable to such Eurodollar Rate Loan.

Eurodollar Rate” means, with respect to any Alternate Base Rate Loan or any Eurodollar Rate Loan, the average of the interest rates per annum (rounded upward, if necessary, to the next 1/100 of 1%) at which deposits in Dollars are offered to the Agent in the Designated Eurodollar Market at or about 11:00 a.m. local time in the Designated Eurodollar Market, two (2) Eurodollar Banking Days before the first day of the applicable Eurodollar Period in an aggregate amount approximately equal to the amount of the Advance to be made by the Agent with respect to such Alternate Base Rate Loan or Eurodollar Rate Loan and for a period of time comparable to the number of days in the applicable Eurodollar Period; provided that (i) for any Alternate Base Rate Loan the applicable Eurodollar Period shall be deemed to be 1 month and (ii) if the Eurodollar Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Eurodollar Rate Advance” means an Advance made hereunder and specified to be a Eurodollar Rate Advance in accordance with Article 2.

Eurodollar Rate Loan” means a Loan made hereunder and specified to be a Eurodollar Rate Loan in accordance with Article 2.

European JV Documents” means, collectively, (i) the Eutelsat Framework Agreement, (ii) any framework or similar agreement entered into in replacement of or in lieu of the Eutelsat Framework Agreement and (iii) any agreement related to the agreements described in the foregoing clauses (i) and (ii).

 

21


Eutelsat Framework Agreement” means that certain Framework and Subscription Agreement, dated as of February 9, 2016, between Borrower and Eutelsat S.A., as amended, restated, supplemented or otherwise modified from time to time.

Event of Default” shall have the meaning provided in Section 9.1.

Exchange Notes” means any registered secured or unsecured senior notes issued in exchange for unregistered secured or unsecured senior notes, which exchange notes are substantially identical in all material respects to such unregistered senior notes, except for the modification or elimination of provisions related to transfer restrictions and additional interest for a registration default.

Excluded Satellite” means any (a) Covered Satellite that has a book value of less than $50.0 million, (b) Covered Satellite that is not expected or intended, in the good faith determination of Borrower, to earn revenue from the operation of such Covered Satellite in excess of $75.0 million for the immediately succeeding 12-month calendar period, (c) Covered Satellite with one year or less of in-orbit life remaining (it being understood and agreed that such Covered Satellite shall be deemed to have “in-orbit life” only for so long as it is maintained in station kept orbit in a manner consistent with applicable governmental and ITU requirements), (d) Covered Satellite for which the procurement of In-Orbit Insurance in the amounts and on the terms required herein would not be available at a premium amount that is, and on other terms and conditions that are, commercially reasonable despite commercially reasonable efforts to obtain such coverage (including efforts to minimize the exclusions and insurance deductibles, subject to usual and customary exclusions consistent with the operating status of the Covered Satellite) and (e) Covered Satellite designated as an Excluded Satellite by Borrower if Borrower determines in good faith that (i)(A) such Covered Satellite’s performance and/or operating status has been adversely affected by anomalies or component exclusions and Borrower and its Restricted Subsidiaries are unlikely to receive insurance proceeds from a future failure thereof or (B) there are systemic failures or anomalies applicable to satellites of the same model or using the same components and (ii) Borrower and its Restricted Subsidiaries are unlikely to obtain usual and customary coverage in the satellite insurance market for the Covered Satellite at a premium amount that is, and on other terms and conditions that are, commercially reasonable despite commercially reasonable efforts to obtain such coverage (including efforts to minimize the exclusions and insurance deductibles, subject to usual and customary exclusions consistent with the anomalies and/or operating status of the Covered Satellite).

Excluded Swap Obligation” means, with respect to any Subsidiary Guarantor (other than the direct counterparty of such Swap Obligation), any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Subsidiary Guarantor (other than the direct counterparty of such Swap Obligation) of, or the grant under a Loan Document by such Subsidiary Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Subsidiary Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 11.28 or any similar provision in any Subsidiary Guaranty and any and all guarantees of such Subsidiary Guarantor’s Swap Obligations by other Loan Parties) at the time the guaranty of such Subsidiary Guarantor, or grant by such Subsidiary Guarantor of a security interest, becomes effective with

 

22


respect to such Swap Obligation. If a Swap Obligation arises under a “master agreement” governing more than one Hedging Agreement, such exclusion shall apply to only the portion of such Swap Obligation that is attributable to Hedging Agreements for which such guaranty or security interest is or becomes illegal.

Excluded Taxes” means any of the following Taxes imposed on or with respect to a 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 applicable 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 Borrower under Section 11.26) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.11, 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 3.11(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

Exim Credit Agreement” means that certain Credit Agreement dated as of March 12, 2015 by and among Viasat Technologies Limited, as borrower, Borrower, as guarantor, JPMorgan Chase Bank, National Association, as Ex-Im Facility Agent, and Export-Import Bank of the United States, as amended, restated, supplemented or otherwise modified from time to time.

Exim Indebtedness” means Indebtedness of Borrower and Viasat Technologies Limited under the Finance Documents (as defined in the Exim Credit Agreement).

Existing Credit Agreement” means that certain Fifth Amended and Restated Credit Agreement dated as of May 9, 2012 by and among Borrower, MUFGUnion Bank, N.A., as administrative and collateral agent, and the lenders from time to time party thereto, as amended prior to the date hereof.

Existing Letters of Credit” means the letters of credit, if any, outstanding on the ClosingSeventh Amendment Effective Date and listed on Schedule 2.4.

Existing Satellite Project” means any Satellite Activities performed or undertaken in connection with or with respect to any Existing Satellite System.

Existing Satellite Systems” means (i) the ViaSat-1 Satellite manufactured by Space Systems/Loral, Inc., the WildBlue-1 Satellite and the Anik F2 Satellite and (ii) in each case, the related gateway facilities, earth stations and other ground infrastructure (including user terminals and hub equipment), whether constructed, acquired or installed before or after the Closing Date.

Extended Commitments” means the Extended Term Loan Commitments and the Extended Revolving Commitments.

 

23


Extended Facility” means any additional tranche reflecting an extension of the maturity and, if applicable, amortization schedule of any Facility established pursuant to Section 2.12.

Extended Facility Agreement” means an Extended Revolving Credit Facility Agreement or an Extended Term Facility Agreement, as the context may require.

Extended Facility Closing Date” means, with regard to an Extended Facility, the first date all the conditions precedent set forth in the respective Extended Facility Agreement are satisfied or waived in accordance with Section 11.2.

Extended Facility Lender” means, at any time, with regard to an Extended Facility, any Lender that holds Loans or Commitments under such Extended Facility at such time.

Extended Facility Note” means, with regard to an Extended Facility, a promissory note made by Borrower in favor of an Extended Facility Lender under such Extended Facility, evidencing Loans made by such Extended Facility Lender under such Extended Facility, substantially in the form of Exhibit A to the respective Extended Facility Agreement.

Extended Revolving Commitments” shall have the meaning provided in Section 2.12.

Extended Revolving Credit Facility” means an Extended Facility designated as an “Extended Revolving Credit Facility” by Borrower and established pursuant to an Extended Revolving Credit Facility Agreement.

Extended Revolving Credit Facility Agreement” means an agreement in substantially the form of Exhibit K hereto duly completed such that such agreement shall set forth the terms and conditions relating to an Extended Revolving Credit Facility.

Extended Term Facility” means an Extended Facility designated as an “Extended Term Facility” by Borrower and established pursuant to an Extended Term Facility Agreement.

Extended Term Facility Agreement” means an agreement in substantially the form of Exhibit L hereto duly completed such that such agreement shall set forth the terms and conditions relating to an Extended Term Facility.

Extended Term Loan Commitment” means the agreement of any Lender, pursuant to Section 2.12, to extend the Maturity Date of outstanding Term Loans owed to it by Borrower.

Extended Term Loans” shall have the meaning provided in Section 2.12.

Extending Revolving Lender” shall have the meaning provided in Section 2.12.

Extending Term Loan Lender” shall have the meaning provided in Section 2.12.

Extension Offer” shall have the meaning provided in Section 2.12.

Facility” means the Revolving Credit Facility, a New Term Facility, an Extended Revolving Credit Facility or an Extended Term Facility as the context may require.

 

24


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), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any applicablefiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement with respect thereto, treaty or convention among Governmental Agencies and implementing such Sections of the Code.

FCC” means the Federal Communications Commission, or any successor entity.

Federal Funds Rate” means, as of any date of determination, the rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve Board (including any such successor, “H.15(519)”) for such date opposite the caption “Federal Funds (Effective).” If for any relevant date such rate is not yet published in H.15(519), the rate for such date will be the rate set forth in the daily statistical release designated as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or any successor publication, published by the Federal Reserve Lender of New York (including any such successor, the “Composite 3:30 p.m. Quotation”) for such date under the caption “Federal Funds Effective Rate.” If on any relevant date the appropriate rate for such date is not yet published in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such date will be the arithmetic mean of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that date by each of three leading brokers of Federal funds transactions in New York City selected by the Agent. For purposes of this Agreement, any change in the Alternate Base Rate due to a change in the Federal Funds Rate shall be effective as of the opening of business on the effective date of such change. If at any time the Federal Funds Rate is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Fifth Amendment” means that certain Fifth Amendment to Credit Agreement dated as of November 23, 2021 among Borrower, Agent and the Lenders party thereto.

Fifth Amendment Effective Date” has the meaning assigned to such term in the Fifth Amendment.

First Lien Leverage Ratio” means, as of any date of determination, the ratio of (a) all Funded Debt as of such date that is secured by a Lien on the assets of the Borrower and its Restricted Subsidiaries (other than any Liens on Collateral subordinated and junior to the Liens of the Agent that secure the Obligations) minus the aggregate amount of all Eligible Cash and Cash Equivalents on that date, to (b) Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end (or Fiscal Year end in the case of the fourth Fiscal Quarter of any Fiscal Year) for which financial statements prepared on a consolidated basis in accordance with GAAP are available.

First Year” has the meaning given in Section 7.1(d).

Fiscal Quarter” means a fiscal quarter of Borrower consistent with Borrower’s SEC filings.

 

25


Fiscal Year” means the fiscal year of Borrower ending on the last day of the first Fiscal Quarter of each calendar year.

Foreign Currency Letter of Credit” means a Letter of Credit issued pursuant to Section 2.4(n) and denominated in a Permitted Foreign Currency.

Foreign Lender” means a Lender that is not a U.S. Person.

Foreign Restricted Subsidiary” means a Foreign Subsidiary that is a Restricted Subsidiary.

Foreign Subsidiary” means a Subsidiary of Borrower that is organized under the Laws of a country (or political subdivision thereof) other than the United States.

Foreign Subsidiary Holdco” means any Domestic Subsidiary of Borrower all or substantially all of the assets of which are Equity Interests (or Equity Interests and debt interests) in one or more Foreign Subsidiaries.

Fourth Amendment” means that certain Fourth Amendment to Credit Agreement dated as of January 18, 2019 among Borrower, Agent and the Lenders party thereto.

Fourth Amendment Effective Date” has the meaning assigned to such term in the Fourth Amendment.

Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Lender, such Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations with respect to Letters of Credit issued by the Issuing Lender other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Pro Rata Share of outstanding Swing Line Advances made by the Swing Line Lender other than Swing Line Advances as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms of this Agreement.

Funded Debt” means, as to any Person (without duplication), (a) all Indebtedness of the types described in clauses (a), (b), (c), (d) and (e) of the definition of “Indebtedness”; provided that, for all purposes other than the calculation of the Total Leverage Ratio for purposes of determining the Applicable Margin, “Funded Debt” shall exclude letters of credit unless such letters of credit have been drawn and not reimbursed upon becoming due.

GAAP” means, as of any date of determination, accounting principles (a) set forth as generally accepted in then currently effective Opinions of the Accounting Principles Board of the American Institute of Certified Public Accountants, (b) set forth as generally accepted in then currently effective Statements of the Financial Accounting Standards Board or (c) that are then approved by such other entity as may be approved by a significant segment of the accounting profession in the United States. The term “consistently applied,” as used in connection therewith, means that the accounting principles applied are consistent in all material respects with those applied at prior dates or for prior periods.

 

26


Government Securities” means readily marketable (a) direct full faith and credit obligations of the United States or obligations guaranteed by the full faith and credit of the United States and (b) obligations of an agency or instrumentality of, or corporation owned, controlled or sponsored by, the United States that are generally considered in the securities industry to be implicit obligations of the United States.

Governmental Agency” means (a) any international, foreign, federal, state, county or municipal government, or political subdivision thereof, (b) any governmental or quasi-governmental agency (including, but not limited to, the FCC), authority, board, bureau, commission, department, instrumentality or public body (including, but not limited to, the International Telecommunication Union (ITU)) or (c) any court or administrative tribunal of competent jurisdiction.

Guaranty Obligation” means, as to any Person, any (a) guarantee by that Person of Indebtedness of, or other obligation performable by, any other Person or (b) assurance given by that Person to an obligee of any other Person with respect to the performance of an obligation by, or the financial condition of, such other Person, whether direct, indirect or contingent, including any purchase or repurchase agreement covering such obligation or any collateral security therefor, any agreement to provide funds (by means of loans, capital contributions or otherwise) to such other Person, any agreement to support the solvency or level of any balance sheet item of such other Person or any “keep-well” or other arrangement of whatever nature given for the purpose of assuring or holding harmless such obligee against loss with respect to any obligation of such other Person; provided, however, that the term Guaranty Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guaranty Obligation in respect of Indebtedness shall be deemed to be an amount equal to the stated or determinable amount of the related Indebtedness (unless the Guaranty Obligation is limited by its terms to a lesser amount, in which case to the extent of such amount) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the Person in good faith. The amount of any other Guaranty Obligation shall be deemed to be zero unless and until the amount thereof has been (or in accordance with Financial Accounting Standards Board Statement No. 5 should be) quantified and reflected or disclosed in the consolidated financial statements (or notes thereto) of Borrower.

Hazardous Materials” means substances defined as “hazardous substances” pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., or as “hazardous”, “toxic” or “pollutant” substances or as “solid waste” pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., or as “friable asbestos” pursuant to the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. or any other applicable Law relating to the protection of the environment or human health (as it relates to the exposure to environmental hazards) or to the presence, release, manufacture, use, transportation, treatment, storage, disposal or recycling of hazardous materials, in each case as such Laws are amended from time to time.

Hazardous Materials Laws” means all Laws governing the treatment, transportation or disposal of Hazardous Materials applicable to any of the Real Property.

 

27


Hedge Bank” any Person in its capacity as a party to a Hedging Agreement that (a) at the time it enters into a Hedging Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Hedging Agreement, in its capacity as a party to such Hedging Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Secured Hedging Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedging Agreement, and provided further that for any of the foregoing to be included as a “Secured Hedging Agreement” on any date of determination by the Agent, the applicable Hedge Bank (other than the Agent or an Affiliate of the Agent) must have delivered a Secured Party Designation Notice to the Agent prior to such date of determination.

Hedge Termination Value” means, in respect of any one or more Hedging Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements 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 mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).

Hedging Agreements” means Interest Rate Protection Agreements, Commodity Agreements and Currency Agreements.

Increased Amount Date” has the meaning given in Section 2.8(a).

Incremental Equivalent Indebtedness” means Indebtedness issued, incurred or otherwise obtained by Borrower or any of its Restricted Subsidiaries in respect of one or more series of senior unsecured notes, senior secured first lien or junior lien notes or subordinated notes (in each case issued in a public offering, Rule 144A or other private placement in lieu of the foregoing (and any substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC) issued in exchange therefor)), senior secured first lien, junior lien or unsecured loans or secured or unsecured mezzanine Indebtedness that, in each case, if secured, will be secured by all or any portion of the Collateral on a pari passu or junior basis with the Liens on Collateral securing the Obligations, and that are issued or made in lieu of New Commitments; provided that (a) the aggregate principal amount of all Incremental Equivalent Indebtedness outstanding at any time shall not exceed the sum of (i) the sum of (A) $300,000,000 plus (B) to the extent not financed with long-term indebtedness, an amount equal to all voluntary prepayments of the Term Loans and, to the extent accompanied by a permanent reduction of the Revolving Commitments, of the Revolving Loans, in the aggregate pursuant to this clause (i) (less any amount of New Commitments established pursuant to clause (a) of the definition of New Commitment Cap) plus (ii) at Borrower’s option, up to an amount of Incremental Equivalent Indebtedness (together with any then outstanding, or concurrently incurred, New Commitments) such that (x) in the case of any Incremental Equivalent Indebtedness that is secured on a pari passu basis with any Liens on the Collateral securing the Obligations, the First Lien Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (assuming the borrowing of the maximum credit thereunder) and the application

 

28


of the proceeds therefrom) shall not exceed 4.00 to 1.00 and (y) in the case of any Incremental Equivalent Indebtedness that is secured on a junior basis with any Liens on the Collateral securing the Obligations or unsecured, the Total Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (assuming the borrowing of the maximum credit thereunder) and the application of the proceeds therefrom) shall not exceed the then applicable Total Leverage Ratio financial covenant level set forth in Section 6.13 for the most recently ended period for which financial statements have been delivered pursuant to Section 7.1, (b) in the case of Incremental Equivalent Indebtedness that is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (c) if such Incremental Equivalent Indebtedness is secured, such Incremental Equivalent Indebtedness shall be subject to an applicable Intercreditor Agreement, (d) in the case of Incremental Equivalent Indebtedness with respect to which a Loan Party is an obligor, all obligors with respect thereto must be Loan Parties, (e) in the case of Incremental Equivalent Indebtedness with respect to which a Loan Party is an obligor, such Incremental Equivalent Indebtedness shall have a final maturity date which is no earlier than the Revolving Loan Maturity Date (provided that Incremental Equivalent Indebtedness with an aggregate principal amount not exceeding $100,000,000 may have a final maturity date that is earlier than the Revolving Loan Maturity Date so long as, at the time of incurrence thereof, the Senior Secured Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (assuming the borrowing of the maximum credit thereunder) does not exceed 3.50 to 1.0), and (f) in the case of Incremental Equivalent Indebtedness with respect to which a Loan Party is an obligor, such Incremental Equivalent Indebtedness shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by Borrower) to the lenders or holders providing such Incremental Equivalent Indebtedness, than those applicable to the Obligations (except for covenants or other provisions (1) conformed (or added) in the Loan Documents, for the benefit of the Lenders, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Agent (provided that if such Incremental Equivalent Indebtedness is no longer outstanding, then at the option of Borrower, such covenants or other provisions shall be removed from the Loan Documents pursuant to an amendment thereto) or (2) applicable only to periods after the latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Indebtedness) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Indebtedness (as reasonably determined in good faith by Borrower). Borrower may elect to utilize capacity under clause (b) of the foregoing proviso prior to utilizing capacity under clause (a) of the foregoing proviso. To the extent there is capacity under both of clauses (a)(i) and (a)(ii) to the foregoing proviso on any date that Incremental Equivalent Indebtedness is incurred and Borrower does not make an election as to the utilization of such clauses, Borrower will be deemed to have elected to utilize clause (a)(ii) of the foregoing proviso prior to any utilization of clause (a)(i).

Indebtedness” means, as to any Person (without duplication), (a) indebtedness of such Person for borrowed money or for the deferred purchase price of Property (excluding (i) trade and other accounts payable accrued in the ordinary course of business and not past due for more than sixty (60) days after the date on which such trade account was created) and (ii) contingent in-orbit incentive payments or other contingent deferred payments earned by a manufacturer during the life of a satellite under any satellite manufacturing contract), including any Guaranty Obligation for any such indebtedness, (b) indebtedness or Guaranty Obligations of such Person of the nature

 

29


described in clause (a) that is non-recourse to the credit of such Person but is secured by assets of such Person, to the extent of the fair market value of such assets as determined in good faith by such Person, (c) Capital Lease Obligations of such Person, (d) indebtedness of such Person arising under bankers’ acceptance facilities, (e) any direct or contingent obligations of such Person under letters of credit issued for the account of such Person and (f) any net obligations of such Person under any Hedging Agreement. The amount of any net obligation under any Hedging Agreement on any date shall be deemed to be the Hedge Termination Value thereof as of such date.

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 Borrower or any Subsidiary Guarantor under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

Indemnitees” has the meaning given in Section 11.11.

IndigoInmarsat” means Connect Topco Limited, a private company limited by shares and incorporated in Guernsey.

Indigo Acquisition” means that certain acquisition by the Borrower, as disclosed in the Form 8-K dated November 8, 2021 (the “Company Filing”), directly or indirectly, of 100% of the issued share capital in Indigo pursuant to the Purchase Agreement (as defined in Company Filing).

“Inmarsat Acquisition” means the acquisition of Inmarsat by Borrower pursuant to the terms of the Inmarsat Acquisition Documents.

“Inmarsat Acquisition Agreement” means the Share Purchase Agreement dated November 8, 2021 and all schedules, exhibits and annexes thereto.

“Inmarsat Acquisition Documents” means the Inmarsat Acquisition Agreement and any other document designated as an Inmarsat Acquisition Document by Borrower and the Agent and all schedules, exhibits and annexes to each of the foregoing and all side letters, instruments and agreements affecting the terms of the foregoing or entered into in connection therewith, as the same may be amended, supplemented, waived or otherwise modified from time to time.

“Inmarsat Senior Secured Notes” means the $2,075,000,000 in aggregate principal amount of 6.750% senior secured notes due 2026 issued by Connect Finco Sarl and Connect U.S. Finco LLC and any Permitted Refinancing Indebtedness thereof, and includes the associated Guaranty Obligations in respect thereof.

“Inmarsat Senior Secured Term Loan Facility” means the senior secured term loan facility pursuant to that certain credit agreement dated December 12, 2019, among Connect Midco Limited, Connect Bidco Limited, Connect Finco Sarl, Connect U.S. Finco LLC, the lenders and issuing banks party thereto and Barclays Bank PLC, as administrative agent and collateral agent, and any Permitted Refinancing Indebtedness thereof, and includes the associated Guaranty Obligations in respect thereof.

 

30


In-Orbit Insurance” means, with respect to any Covered Satellite, insurance or other contractual arrangement providing for coverage against the risk of loss of or damage to such Covered Satellite attaching upon the expiration of the launch insurance therefor (or, if launch insurance is not procured, upon the initial completion of in-orbit testing) and attaching, during the commercial in-orbit service of such Covered Satellite, upon the expiration of the immediately preceding corresponding policy or other contractual arrangement, as the case may be, subject to the terms and conditions set forth in this Agreement.

In-Orbit Spare Capacity” means a satellite or the payload of a satellite that:

(a) is available in the event of a Covered Satellite loss or failure in order to restore service on the Covered Satellite;

(b) meets or exceeds the contractual performance specifications for the payload being protected; and

(c) may be provided directly by Borrower or a Subsidiary or by another satellite operator pursuant to a contractual arrangement.

Intangible Assets” means assets that are considered intangible assets under GAAP, including customer lists, goodwill, covenants not to compete, copyrights, trade names, trademarks, licenses and patents.

Intercreditor Agreement” means (i) in the case of any Indebtedness that is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Obligations, an intercreditor agreement based on the terms contained in Exhibit G-1 attached hereto and (ii) in the case of any Indebtedness that is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Obligations, an intercreditor agreement based on the terms contained in Exhibit G-2 attached hereto, in each case, with such modifications, if any, subject to the Agent’s reasonable approval.

Interest Coverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of (a) EBITDA for the fiscal period consisting of the four (4) Fiscal Quarters ended on such date to (b) Cash Interest Expense of Borrower and its Restricted Subsidiaries for such fiscal period.

Interest Expense” means, with respect to any Person and as of the last day of any fiscal period, the sum of (a) all interest, fees, charges and related expenses (in each case as such expenses are calculated according to GAAP) paid or payable (without duplication) for that fiscal period by that Person to a lender in connection with borrowed money (including any obligations for fees, charges and related expenses payable to the issuer of any letter of credit) or the deferred purchase price of assets that are considered “interest expense” under GAAP plus (b) the portion of rent paid or payable (without duplication) for that fiscal period by that Person under Capital Lease Obligations that should be treated as interest in accordance with Financial Accounting Standards Board Statement No. 13 minus (c) any cash interest income of such Person earned during such fiscal period, as determined in accordance with GAAP.

 

31


Interest Rate Protection Agreement” means a written agreement between Borrower or any of its Restricted Subsidiaries and one or more financial institutions providing for “swap,” “cap,” “collar” or other interest rate protection with respect to any Indebtedness.

Investment” means, when used in connection with any Person, any investment by or of that Person, whether by means of purchase or other acquisition of Equity Interests or other securities of any other Person or by means of a loan, advance creating a debt, capital contribution, guaranty or other debt or equity participation or interest in any other Person; provided that (a) expenditures by Borrower or the Restricted Subsidiaries with respect to Customer Equipment shall not be deemed to be an Investment and (b) intercompany receivables and payables in the ordinary course of business in exchange for goods and services on an arm’s length basis shall not be deemed to be Investments. The amount of any Investment shall be the amount actually invested (minus any return of capital with respect to such Investment which has actually been received in Cash or has been converted into Cash), without adjustment for subsequent increases or decreases in the value of such Investment.

Issuing Lender” means MUFG, Bank of America, N.A. and JPMorgan Chase Bank, N.A., or any other Lender capable of issuing Commercial Letters of Credit or Standby Letters of Credit and approved by Borrower and Agent (such consent not to be unreasonably withheld or delayed) that has accepted appointment as an Issuing Lender.

Joint Venture” means any direct or indirect Investment by Borrower or any Restricted Subsidiary in any Person that is not a Wholly-Owned Subsidiary of Borrower, which Person is engaged in a Permitted Business.

L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.

L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Loan.

L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all unreimbursed amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 2.4(k).

Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents of any Governmental Agency.

Lender” means (a) each lender whose name is set forth in the signature pages of the Fourth Amendment, (b) each lender which may hereafter become a party to this Agreement pursuant to Section 2.8, Section 11.8 or pursuant to a New Term Facility Supplement, (c) the successors and assigns of the Persons described in clauses (a) and (b), (d) unless the context requires otherwise, the Swing Line Lender and (e) as the context requires, the Issuing Lender.

 

32


Letter of Credit Sublimit” means an amount equal to $150,000,000; provided, however, that with respect to (i) MUFG, in its capacity as an L/C IssuerIssuing Lender, the Letter of Credit Sublimit shall not exceed $50,000,000 without its consent, (ii) Bank of America, N.A., in its capacity as an L/C IssuerIssuing Lender, the Letter of Credit Sublimit shall not exceed $50,000,000 without its consent and (iii) JPMorgan Chase Bank, N.A., in its capacity as an L/C IssuerIssuing Lender, the Letter of Credit Sublimit shall not exceed $50,000,000 without its consent. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.

Letters of Credit” means (a) the Existing Letters of Credit and (b) any Commercial Letters of Credit or Standby Letters of Credit issued by an Issuing Lender pursuant to Section 2.4.

Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment for security, security interest, encumbrance, lien or charge of any kind, whether voluntarily incurred or arising by operation of Law or otherwise, affecting any Property, including any conditional sale or other title retention agreement, any lease in the nature of a security interest, and/or the filing of any financing statement (other than a precautionary financing statement with respect to a lease that is not in the nature of a security interest) under the Uniform Commercial Code or comparable Law of any jurisdiction with respect to any Property.

Limited Condition Transaction” means a Permitted Acquisition or similar Investment permitted hereunder that Borrower or one or more of its Restricted Subsidiaries is contractually committed to consummate (it being understood that such commitment may be subject to conditions precedent, which conditions precedent may be amended, satisfied or waived in accordance with the terms of the applicable agreement) and whose consummation is not conditioned on the availability of, or on obtaining, third party financing and which has been designated as a Limited Condition Transaction by Borrower in writing to the Agent.

Liquidity” means, as of any date of determination, the sum of (x) all domestic Cash and Cash Equivalents held by Borrower and its Domestic Restricted Subsidiaries plus (y) the maximum aggregate unused Revolving Commitment and any other revolving commitment of Borrower and its Domestic Restricted Subsidiaries (with a tenor that is at least as long as the remaining tenor of the Revolving Commitment) to the extent unused as of such date that is available for general corporate purposes, the availability of which is subject to the making of representations and warranties similar to those contained in Article 4 of this Agreement.

Loan” means, as the context may require, the amount of a particular Advance made or to be made, or the aggregate of the Advances made at any one time by the Lenders pursuant to Section 2.1 or pursuant to the terms of any New Term Facility Supplement or Extended Facility Agreement.

Loan Documents” means, collectively, this Agreement, the Notes, the Subsidiary Guaranty (if any), the Security Agreements, each New Term Facility Supplement, each Extended Facility Agreement and any other agreements of any type or nature hereafter executed and delivered by Borrower or any of the Subsidiary Guarantors to the Agent, the Issuing Lender or to any Lender in any way relating to or in furtherance of this Agreement (but specifically excluding any Secured Hedging Agreement and agreements governing Bank Products).

 

33


Loan Parties” means Borrower and the Subsidiary Guarantors (if any), and “Loan Party” means any one of them.

Margin Stock” means “margin stock” as such term is defined in Regulation U.

Material Adverse Effect” means (a) a material adverse effect on the validity or enforceability of any Loan Document, (b) a material adverse effect on the business, operations or financial condition of Borrower and its Restricted Subsidiaries, taken as a whole or (c) a material adverse effect on the ability of Borrower to perform the Obligations.

Maturity Date” means (a) with respect to any tranche of Term Loans (including any New Term Loans or Extended Term Loans), the maturity dates specified therefor in the applicable New Term Facility Supplement or Extended Facility Agreement and (b) with respect to the Revolving Commitments, the applicable Revolving Loan Maturity Date.

Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during any period when a Lender constitutes a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of the Issuing Lender with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.11(a)(i), (a)(ii), (a)(iii) or, (a)(iv) or (a)(v), an amount equal to 103% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Agent and the Issuing Lender in their sole discretion.

MUFG” shall have the meaning provided in the introductory paragraph to this Agreement.

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which Borrower or any of its ERISA Affiliates contributes or is obligated to contribute.

Net Cash Proceeds” means, with respect to any issuance or sale of Equity Interests, the Cash proceeds received by or for the account of Borrower and its Restricted Subsidiaries from such issuance or sale to a Person other than Borrower or any of its Restricted Subsidiaries, net of (i) attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other out-of-pocket fees, charges and expenses actually incurred in connection with such issuance or sale and (ii) any taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing arrangements).

Net Cash Sales Proceeds” means, with respect to any Disposition, the sum of (a) the Cash proceeds received by or for the account of Borrower and its Restricted Subsidiaries from such Disposition plus (b) the amount of Cash received by or for the account of Borrower and its Restricted Subsidiaries upon the sale, collection or other liquidation of any proceeds that are not Cash from such Disposition, in each case net of (i) any amount required to be paid to any Person owning an interest in the assets disposed of, (ii) any amount applied to the repayment of Indebtedness secured by a Lien permitted under Section 6.9 on the asset disposed of, (iii) any transfer, income or other taxes payable as a result of such Disposition (after taking into account any available tax credit or deductions and any tax sharing arrangements), (iv) professional fees

 

34


and expenses, fees due to any Governmental Agency, broker’s commissions and other out-of-pocket costs of sale actually paid to any Person that is not an Affiliate of Borrower attributable to such Disposition and (v) any reserves established in accordance with GAAP in connection with such Disposition.

Net Income” means, with respect to any fiscal period, the consolidated net income of Borrower and its Restricted Subsidiaries for that period, determined in accordance with GAAP, consistently applied.

New Commitment Cap” means an amount equal to the sum of (a) the sum of (1) $300,000,000502,500,000 plus (2) to the extent not financed with long-term indebtedness, an amount equal to the voluntary prepayments of the Term Loans and, to the extent accompanied by a permanent reduction of the Revolving Credit Commitments, of the Revolving Loans, in the aggregate pursuant to this clause (a) (less any amount of Incremental Equivalent Indebtedness incurred pursuant to clause (a)(i) of the proviso to the definition thereof) plus (b) at Borrower’s option, up to an amount of New Commitments (together with any then outstanding, or concurrently incurred, Incremental Equivalent Indebtedness (assuming the borrowing of the maximum credit thereunder)) such that the First Lien Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (assuming the borrowing of the maximum credit thereunder) and the application of the proceeds therefrom) shall not exceed 4.00 to 1.00; provided that (i) Borrower may elect to utilize capacity under the foregoing clause (b) prior to utilizing capacity under the foregoing clause (a) and (ii) to the extent there is capacity under both of the foregoing clauses (a) and (b) on any date that New Commitments are established and Borrower does not make an election as to the utilization of such clauses, Borrower will be deemed to have elected to utilize the foregoing clause (b) prior to any utilization of the foregoing clause (a).

New Commitments” has the meaning given in Section 2.8(a).

New Revolving Commitment” has the meaning given in Section 2.8(a).

New Revolving Loan Lender” has the meaning given in Section 2.8(a).

New Term Facility” means any additional tranche of term commitments and loans established pursuant to a New Term Facility Supplement.

New Term Facility Note” means, with regard to a New Term Facility, a promissory note made by Borrower in favor of a New Term Facility Lender under such New Term Facility, evidencing New Term Facility Loans made by such New Term Facility Lender under such New Term Facility, substantially in the form of Exhibit A to the respective New Term Facility Supplement.

New Term Facility Supplement” means a supplement to this Agreement in substantially the form of Exhibit J hereto duly completed such that such supplement shall set forth the terms and conditions relating to a New Term Facility.

New Term Loan” has the meaning given in Section 2.8(c).

New Term Loan Commitment” has the meaning given in Section 2.8(a).

 

35


New Term Loan Lender” has the meaning given in Section 2.8(a).

Non-Consenting Lender” has the meaning given in Section 11.26.

Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

Non-Extension Notice Date has the meaning given in Section 2.4(a)(3).

Note” means any of the Revolving Notes, the Swing Line Notes, the New Term Facility Notes, if any, or the Extended Facility Notes, if any, and “Notes” means all of the Revolving Notes, all of the Swing Line Notes, all of the New Term Facility Notes, if any, and all of the Extended Facility Notes, if any.

Obligations” means all present and future obligations of every kind or nature of Borrower or any of the Subsidiary Guarantors at any time and from time to time owed to the Agent, the Issuing Lender or the Lenders or any one or more of them, under any one or more of the Loan Documents, whether due or to become due, matured or unmatured, liquidated or unliquidated, or contingent or noncontingent, including obligations of performance as well as obligations of payment, and including interest that accrues after the commencement of any proceeding under any Debtor Relief Law by or against Borrower or any of the Subsidiary Guarantors; provided, however, that the “Obligations” of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.

Opinion of Counsel” means the favorable written legal opinion of Latham & Watkins LLP, counsel to Borrower, as to such matters as the Agent may reasonably request, in form and substance satisfactory to the Agent.

Other Satellite Project” means any Satellite Activities performed or undertaken in connection with or with respect to any Other Satellite System.

Other Satellite System” means (i) a Satellite (other than the ViaSat-1, WildBlue-1 and Anik F2 Satellites) manufactured by, on behalf of or in consultation with or otherwise acquired by Borrower or any of its Subsidiaries and (ii) any gateway facilities, earth stations and other ground infrastructure (including user terminals and hub equipment).

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.

 

36


Outstanding Amount” means (a) with respect to any Revolving Loans, Swing Line Loans and Term Loans (if any) on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Loans, Swing Line Loans and Term Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of such L/C Obligations on such date after giving effect to any issuance of Letters of Credit occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by Borrower of unreimbursed amounts.

Participant Register” has the meaning given in Section 11.8(e).

Payment Recipient has the meaning assigned to it in Section 10.14(a).

PBGC” means the Pension Benefit Guaranty Corporation or any successor thereof established under ERISA.

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, which is subject to Title IV of ERISA and is maintained by Borrower or to which Borrower contributes or has an obligation to contribute.

Pension Funding Rules means the rules of the Code and ERISA regarding minimum funding standards with respect to Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

Permitted Acquisition” means (a) the IndigoInmarsat Acquisition and (b) any other Acquisition of another Person that is engaged in, or of assets relating to, a Permitted Business; provided that, solely with respect to this clause (b): (i) subject (in the case of a Limited Condition Transaction) to Section 1.9, no Default or Event of Default shall exist at the time of such Acquisition or would exist immediately after giving effect to such Acquisition, (ii) subject (in the case of a Limited Condition Transaction) to Section 1.9, if the total consideration (whether such consideration is in the form of Equity Interests, cash or otherwise) for such Acquisition exceeds $75,000,000, as determined by Borrower in good faith, a Responsible Official shall certify on behalf of Borrower in writing that Borrower would have been in compliance with a Total Leverage Ratio not greater than the then applicable Total Leverage Ratio financial covenant level set forth in Section 6.13 (after giving effect to such Acquisition on a Pro Forma Basis) as of the last day of the period of four (4) Fiscal Quarters most recently ended prior to the date of such Acquisition for which financial statements prepared on a consolidated basis in accordance with GAAP are available and (iii) if the total consideration (whether such consideration is in the form of Equity Interests, cash or otherwise) for such Acquisition exceeds $50,000,000, as determined by Borrower in good faith, Borrower shall use commercially reasonable efforts to provide the Agent with at least one (1) week prior written notice of such Acquisition, together with (x) at least one (1) year (or such shorter period in which the target has been in existence) of historical financial information relating to the target and (y) such other documentation pertaining to the Acquisition, including the purchase agreement and quarterly projections prepared on a Pro Forma Basis, as the Agent may reasonably request, in the case of clauses (x) and (y), solely to the extent reasonably available to Borrower.

 

37


Permitted Additional Indebtedness” means, collectively, (i) Incremental Equivalent Indebtedness; (ii) Indebtedness of the Subsidiary Guarantors under any Guaranty Obligations in respect of any Incremental Equivalent Indebtedness; and (iii) any Permitted Refinancing Indebtedness in respect of any Incremental Equivalent Indebtedness (provided, that such Permitted Refinancing Indebtedness otherwise qualifies as Incremental Equivalent Indebtedness); provided that the same shall (to the extent secured) be subject to the terms and conditions of an Intercreditor Agreement.

Permitted Business” means: (a) the study, research, development, testing, and support of “off-the-shelf,” semi-custom and custom communication, in-flight entertainment and satellite systems, products and components (including without limitation terrestrial, airborne and space systems); (b) the design, manufacture, production, sale, distribution and operation of satellite and other wireless or wired networks and networking systems, products and services to government and commercial customers and consumers (including without limitation terrestrial, airborne and space systems); (c) the management and provision of network satellite and other communication and information services; (d) the design, development, sale, provision and distribution of fixed and mobile broadband products and services, information security products and services, and in-flight or media products and services relating to the electronic delivery of content; (e) the business of Borrower and its Subsidiaries as historically and currently conducted; and (f) any and all business and other activities related to, in furtherance of, or ancillary or complementary to the foregoing.

Permitted ECA Financing” means any financing arrangement with respect to Indebtedness issued to or owed to or guaranteed or otherwise supported by any export credit agency (whether of the United States or any foreign jurisdiction and including, without limitation, Export-Import Bank of the United States, Compagnie Française d’Assurance pour le Commerce Extérieur, Nippon Export and Investment Insurance and any other government export credit agency) or institution serving a similar function for the purpose of financing (in whole or in part) any Other Satellite Project with tenor and principal repayment terms that are customary for export-import financings of a similar type as determined by Borrower in its reasonable discretion.

Permitted Encumbrances” means, with respect to Borrower and its Restricted Subsidiaries:

(a)    inchoate Liens incident to construction on or maintenance of Property; or Liens incident to construction on or maintenance of Property now or hereafter filed of record for which adequate reserves have been set aside (or deposits made pursuant to applicable Law) and which are being contested in good faith by appropriate proceedings and have not proceeded to judgment, provided that, by reason of nonpayment of the obligations secured by such Liens, no such Property is subject to a material impending risk of loss or forfeiture;

(b)    Liens for taxes and assessments on Property which are not yet past due; or Liens for taxes and assessments on Property for which adequate reserves have been set aside and are being contested in good faith by appropriate proceedings and have not proceeded to judgment, provided that, by reason of nonpayment of the obligations secured by such Liens, no such Property is subject to a material impending risk of loss or forfeiture;

 

38


(c)    defects and irregularities in title to any Property which in the aggregate do not materially impair the fair market value or use of the Property for the purposes for which it is or may reasonably be expected to be held;

(d)    easements, exceptions, reservations, or other agreements for the purpose of pipelines, conduits, cables, wire communication lines, power lines and substations, streets, trails, walkways, drainage, irrigation, water, and sewerage purposes, dikes, canals, ditches, the removal of oil, gas, coal, or other minerals, and other like purposes affecting Property which in the aggregate do not materially burden or impair the fair market value or use of such Property for the purposes for which it is or may reasonably be expected to be held;

(e)    easements, exceptions, reservations, or other agreements for the purpose of facilitating the joint or common use of Property in or adjacent to a shopping center or similar project affecting Property which in the aggregate do not materially burden or impair the fair market value or use of such Property for the purposes for which it is or may reasonably be expected to be held;

(f)    rights reserved to or vested in any Governmental Agency to control or regulate, or obligations or duties to any Governmental Agency with respect to, the use of any Property;

(g)    rights reserved to or vested in any Governmental Agency to control or regulate, or obligations or duties to any Governmental Agency with respect to, any right, power, franchise, grant, license, or permit;

(h)    present or future zoning laws and ordinances or other laws and ordinances restricting the occupancy, use, or enjoyment of Property;

(i)    statutory Liens, other than those described in clauses (a) or (b) above, arising in the ordinary course of business with respect to obligations which are not delinquent or are being contested in good faith, provided that, if delinquent, adequate reserves have been set aside with respect thereto and, by reason of nonpayment, no Property is subject to a material impending risk of loss or forfeiture;

(j)    covenants, conditions, and restrictions affecting the use of Property which in the aggregate do not materially impair the fair market value or use of the Property for the purposes for which it is or may reasonably be expected to be held;

(k)    rights of tenants under leases and rental agreements covering Property entered into in the ordinary course of business of the Person owning such Property;

(l)    Liens consisting of pledges or deposits to secure obligations under workers’ compensation laws or similar legislation, including Liens of judgments thereunder which are not currently dischargeable;

(m)    Liens consisting of pledges or deposits of Property to secure performance in connection with operating leases made in the ordinary course of business;

 

39


(n)    Liens consisting of deposits of Property to secure bids made with respect to, or performance of, contracts (other than contracts creating or evidencing an extension of credit to the depositor);

(o)    Liens consisting of any right of offset, or statutory bankers’ lien, on bank deposit accounts maintained in the ordinary course of business so long as such bank deposit accounts are not established or maintained for the purpose of providing such right of offset or bankers’ lien;

(p)    Liens consisting of deposits of Property to secure statutory obligations of Borrower and its Restricted Subsidiaries;

(q)    Liens consisting of deposits of Property to secure (or in lieu of) surety, appeal or customs bonds;

(r)    Liens created by or resulting from any litigation or legal proceeding in the ordinary course of business which is currently being contested in good faith by appropriate proceedings, provided that, adequate reserves have been set aside and no material Property is subject to a material impending risk of loss or forfeiture;

(s)    other non-consensual Liens incurred in the ordinary course of business but not in connection with the incurrence of any Indebtedness, which do not in the aggregate, when taken together with all other Liens, materially impair the fair market value or use of the Property for the purposes for which it is or may reasonably be expected to be held; and

(t)    Rights of Others consisting of (i) an interest (other than a legal or equitable co-ownership interest, an option or right to acquire a legal or equitable co-ownership interest and any interest of a ground lessor under a ground lease), that does not materially impair the fair market value or use of Property for the purposes for which it is or may reasonably be expected to be held, (ii) an option or right to acquire a Lien that would be a Permitted Encumbrance, (iii) the subordination of a lease or sublease in favor of a financing entity and (iv) a license, or similar right, of or to Intangible Assets granted in the ordinary course of business.

Permitted Foreign Currency” means, with respect to Letters of Credit issued pursuant to Section 2.4(n), Australian dollars, British pounds sterling, Euros, Swiss francs, Canadian dollars and any other currency acceptable to the Agent and the applicable Issuing Lender.

Permitted Refinancing Indebtedness” means Indebtedness issued or incurred to refinance, refund, extend, renew or replace all or a portion of Permitted Additional Indebtedness, Subordinated Obligations or, Exim Indebtedness or Assumed Acquisition Indebtedness, as the case may be (“Refinanced Indebtedness”); provided that (i) the principal amount of such refinancing, refunding, extending, renewing or replacing Indebtedness is not greater than the principal amount of such Refinanced Indebtedness (except by an amount no greater than the sum of unpaid accrued interest thereon, any premium reasonably determined to be necessary to accomplish such transaction, any original issue discount on such exchanging, extending, renewing, replacing or refinancing Indebtedness, and reasonable fees and expenses incurred in connection with the foregoing), (ii) such refinancing, refunding, extending, renewing or replacing Indebtedness has a final maturity that is no earlier than such Refinanced Indebtedness, (iii) if such

 

40


Refinanced Indebtedness or any Guaranty Obligations thereof are subordinated to the Secured Obligations, such refinancing, refunding, extending, renewing or replacing Indebtedness and any Guaranty Obligations thereof remain so subordinated on terms, when taken as a whole, no less favorable to the Lenders, (iv) such Indebtedness, if secured, is not secured by a Lien on any assets other than the collateral securing the Refinanced Indebtedness (including, for the avoidance of doubt, after acquired collateral that would have secured such Refinanced Indebtedness pursuant to the terms of such Refinanced Indebtedness), (v) in the case of Permitted Refinancing Indebtedness of Permitted Additional Indebtedness that will be secured by the Collateral, the relevant holders of such refinancing, refunding, extending, renewing or replacing Indebtedness become party to (or otherwise remain a party to) an applicable Intercreditor Agreement, and (vi) the obligors with respect to such Permitted Refinancing Indebtedness shall be the same as the obligors with respect to such Refinanced Indebtedness.

Person” means any individual or entity, including a trustee, corporation, limited liability company, general partnership, limited partnership, joint stock company, trust, estate, unincorporated organization, business association, firm, joint venture, Governmental Agency, or other entity.

Plan means any employee pension benefit plan as such term is defined in Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which a Loan Party or any ERISA Affiliate is an employer as defined in Section 3(5) of ERISA.

Pricing Certificate” means a certificate in the form of Exhibit C, properly completed and signed by a Senior Officer or his or her designated representative of Borrower.

Pricing Period” means (a) the period commencing on the ClosingSeventh Amendment Effective Date and ending on DecemberSeptember 1, 20132023 , and (b) thereafter, the period commencing on each December 2, March 2, June 2 and September 2, and ending on the next following March 1, June 1, September 1 and December 1, respectively.

Prime Rate” means the rate of interest publicly announced from time to time by the Agent in San Francisco, California (or other headquarters city of the Agent), as its “reference rate.” The “reference rate” is one of several base rates used by the Agent and serves as the basis upon which effective rates of interest are calculated for loans and other credits making reference thereto. The “reference rate” is not necessarily the lowest base interest rate used by the Agent. The “reference rate” is evidenced by the recording thereof after its announcement in such internal publication or publications as the Agent may designate. Any change in the Prime Rate announced by the Agent shall take effect at the opening of business on the day specified in the public announcement of such change. If at any time the Prime Rate is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Pro Forma Basis” means, with respect to compliance with any financial test or ratio or preparation and delivery of pro forma financial information hereunder (including any incurrence test), compliance with such financial test or ratio or preparation and delivery of such financial information after giving effect to any EBITDA Event that occurred during the relevant testing period for which such financial test or ratio is being calculated, including pro forma adjustments

 

41


arising out of events which are directly attributable to the proposed EBITDA Event (including, to the extent elected by Borrower, “run-rate” cost savings, operating expense reductions and synergies) that are reasonably quantifiable and factually supportable and that are expected to have a continuing impact, and such other adjustments as are determined in accordance with the definition of EBITDA, in each case as determined by Borrower in good faith and certified on behalf of Borrower by a Responsible Official in writing, using, for purposes of determining such compliance with a financial test or ratio (including any incurrence test), the historical financial statements of all entities, divisions, operating units or assets so acquired or sold and the consolidated financial statements of Borrower and/or any of its Restricted Subsidiaries, calculated as if such EBITDA Event, and all other EBITDA Events that have been consummated during the relevant period, and any Indebtedness incurred or repaid in connection therewith, had been consummated and incurred or repaid at the beginning of such period, and any interest thereon shall be deemed to have accrued from such day on such Indebtedness at the applicable rates provided therefor (and in the case of interest that does or would accrue at formula or floating rate, at the rate in effect at the time of determination) and shall be included in the results of Borrower and its Restricted Subsidiaries for such period; provided that (i) interest accrued during such period on, and the principal of, any Indebtedness repaid or to be repaid or refinanced in such transaction shall be excluded from the results of Borrower and its Restricted Subsidiaries for such period and (ii) the total increase to EBITDA pursuant to this definition as a result of pro forma “run-rate” cost savings, operating expense reductions and synergies adjustments in any four consecutive Fiscal Quarter period, together with the total amount added-back to EBITDA pursuant to clauses (b)(vi), (b)(xviii) and (b)(xix) of the definition of EBITDA for such period, shall be limited to 20.0% of EBITDA for such period (determined prior to giving effect to the increases to EBITDA contemplated by this definition and the addbacks contemplated by clauses (b)(vi), (b)(xviii) and (b)(xix) of the definition of EBITDA).

Projections” means the projected financial information to be prepared by Borrower and furnished to the Lenders hereunder.

Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

Pro Rata Share” means, with respect to any Lender at any time, (a) with respect to such Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of the aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the Issuing Lender to issue, amend or extend Letters of Credit have been terminated pursuant to Section 9.2 or if the Revolving Commitments have expired, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender most recently in effect, giving effect to any subsequent assignments, and (b) with respect to such Lender’s portion of any outstanding Term Loan at any time, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of such Term Loan held by such Lender at such time. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedule 1.1 or in the Assignment and Assumption or other documentation pursuant to which such Lender becomes a party hereto, as applicable. The Pro Rata Shares shall be subject to adjustment as provided in Section 2.10.

 

42


PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

QFC has the meaning assigned to the term qualified financial contract in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

QFC Credit Support has the meaning assigned to such term in Section 11.30.

Qualified ECP Guarantor” means, at any time, in respect of any Swap Obligation, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Quarterly Payment Date” means each April 1, July 1, October 1 and January 1, commencing with January 1, 2014.

Real Property” means, as of any date of determination, all real property then or theretofore owned, leased or occupied by any of Borrower or its Restricted Subsidiaries.

Recipient” means (a) the Agent, (b) any Lender and (c) the Issuing Lender, as applicable.

Refunded Swing Line Advances” has the meaning given in Section 2.9(c).

Register” has the meaning given in Section 11.8(d).

Regulation D” means Regulation D, as at any time amended, of the Board of Governors of the Federal Reserve System, or any other regulation in substance substituted therefor.

Regulation U” means Regulation U, as at any time amended, of the Board of Governors of the Federal Reserve System, or any other regulation in substance substituted therefor.

Related Parties” means, with respect to any Person, such Person’s Affiliates, directors, officers, agents, trustees, managers, administrators, attorneys and employees.

Request for Letter of Credit” means a written request for a Letter of Credit on the Issuing Lender’s then-current form of application and agreement for the issuance or amendment of a Letter of Credit, signed by a Responsible Official of Borrower and properly completed to provide all information required to be included therein.

Request for Loan” means a written request for a Loan substantially in the form of Exhibit D, signed by a Responsible Official of Borrower, on behalf of Borrower, and properly completed to provide all information required to be included therein.

Requirement of Law” means, as to any Person, the articles or certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any Law, or judgment, award, decree, writ or determination of a Governmental Agency, in each case applicable

 

43


to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

Requisite Lenders” means, at any time, Lenders having at such time in excess of 50% of the sum of (i) the unused Commitments, (ii) outstanding Loans and (iii) unfunded participation interests in L/C Obligations and Swing Line Loans. The unused Commitments and outstanding Loans of any Defaulting Lender shall be disregarded in determining Requisite Lenders at any time; provided that the amount of any participation in any Swing Line Loan and unreimbursed drawings under Letters of Credit that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or the Issuing Lender, as the case may be, in making such determination.

Responsible Official” means (a) any Senior Officer and (b) any other responsible official of Borrower or a Restricted Subsidiary thereof so designated in a written notice thereof from a Senior Officer to the Agent. The Lenders shall be entitled to conclusively rely upon any document or certificate that is signed or executed by a Responsible Official of Borrower or any of its Restricted Subsidiaries as having been authorized by all necessary corporate, partnership and/or other action on the part of Borrower or such Restricted Subsidiary.

Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary; provided, that, upon any Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary”.

Resolution Authority means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

Revaluation Date” means, with respect to any Foreign Currency Letter of Credit, each of the following: (i) the date of issuance of such Foreign Currency Letter of Credit, (ii) each date of an amendment to such Foreign Currency Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the Issuing Lender under such Foreign Currency Letter of Credit and (iv) in the case of all Existing Letters of Credit denominated in Permitted Foreign Currencies, the ClosingSeventh Amendment Effective Date.

Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to Borrower pursuant to Section 2.1, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.8(b), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Revolving Commitment of a Lender shall include any Extended Revolving Commitment of such Lender. As the context requires, references to “Revolving Commitment” shall include the aggregate Revolving Commitments of all of the Revolving Lenders.

Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time. The aggregate amount of all of the Revolving Credit Facility on the FourthSeventh Amendment Effective Date is $800,000,000597,500,000.

 

44


Revolving Lender” means a Lender with a Revolving Commitment.

Revolving Loan” means a Loan (other than a Swing Line Advance) made under a Revolving Commitment. Unless the context shall otherwise require, the term “Revolving Loan” shall include any Extended Revolving Loans.

Revolving Loan Maturity Date” means the earliest of (a) (i) January 18, 2024 with respect to any Revolving Commitments (other than any Extended Revolving Commitments), (i) the earlier of (x) August  24, 2028 and (y) the Springing Maturity Date and (ii) with respect to any Extended Revolving Commitments, the maturity dates specified therefor in the applicable Extended Facility Agreement; (b) the date of termination of the Revolving Commitments pursuant to Section 2.5 or 9.2; and (c) the date on which the Obligations become due and payable pursuant to Section 9.2.

Revolving Note” means any of the promissory notes made by Borrower to a Lender evidencing Advances (other than the Swing Line Advances) under that Lender’s Pro Rata Share of the Revolving Commitment, substantially in the form of Exhibit E-1.

Right of Others” means, as to any Property in which a Person has an interest, any legal or equitable right, title or other interest (other than a Lien) held by any other Person in that Property, and any option or right held by any other Person to acquire any such right, title or other interest in that Property, including any option or right to acquire a Lien; provided, however, that (a) no covenant restricting the use or disposition of Property of such Person contained in any Contractual Obligation of such Person and (b) no provision contained in a contract creating a right of payment or performance in favor of a Person that conditions, limits, restricts, diminishes, transfers or terminates such right shall be deemed to constitute a Right of Others.

Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of the Second Amendment Effective Date, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, by the United Nations Security Council, the European Union, any European Union member state, HerHis Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).

Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) the United Nations Security Council, the European Union, any European Union member state, HerHis Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.

Satellite” means any satellite owned by Borrower or any of its Subsidiaries (whether now owned or hereafter acquired) and any satellite purchased by Borrower or any of its Subsidiaries

 

45


pursuant to the terms of a satellite purchase agreement with the prime contractor and manufacturer of such Satellite relating to the manufacture, testing and delivery of such satellite, whether such satellite is in the process of manufacture, has been delivered for launch or is in orbit (whether or not in operational service), and whether such satellite has been acquired or purchased for use by Borrower and its Subsidiaries, for resale to a third party or otherwise.

Satellite Activities” means any of the following: (a) designing, developing, procuring, constructing, managing, launching, testing, operating, insuring and commercializing one or more Satellites; (b) procuring, leasing, managing and operating capacity, bandwidth, beams, transponders or threads or other rights of use on one or more satellites; (c) designing, developing, procuring, constructing, manufacturing, managing, testing, operating, maintaining, insuring, leasing and commercializing gateway facilities, earth stations and other ground infrastructure (including user terminals and hub equipment) for satellites; (d) procuring, making, holding and maintaining licenses, authorizations, approvals, permits, filings, registrations, consents, agreements and other instruments with respect to any of the foregoing and any payments associated therewith; and (e) pursuing such other lawful business activities as may be related, ancillary or complementary to any of the foregoing or a reasonable extension or expansion thereof.

Satellite Project” means any Existing Satellite Project and any Other Satellite Project.

Satellite Trigger” means, with respect to any Satellite, either (x) the launch of such Satellite or (y) the commencement of commercial services with respect to such Satellite, as elected and designated by Borrower in writing to the Agent no later than 60 days following the launch of such Satellite; provided that, to the extent Borrower fails to so notify the Agent within such 60 day period, “Satellite Trigger” shall be deemed to be the launch of such Satellite.

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

Second Amendment” means that certain Second Amendment to Credit Agreement dated as of May 24, 2016 among Borrower, Agent and the Lenders party thereto.

Second Amendment Effective Date” has the meaning assigned to such term in the Second Amendment.

Secured Hedging Agreements” means any Hedging Agreement between Borrower or one or more Restricted Subsidiaries and a Hedge Bank.

Secured Obligations” means (a) all Obligations, (b) all debts, liabilities and obligations now or hereafter owing from Borrower and any Restricted Subsidiary to any Lender or any Affiliate of a Lender under Secured Hedging Agreements or arising from or related to Bank Products and (c) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case 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 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; provided, however, that the “Secured

 

46


Obligations” of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.

Secured Parties” has the meaning given in the Security Agreements.

Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit M.

Security Agreements” means the Borrower Pledge Agreement, the Borrower Security Agreement, the Subsidiary Pledge Agreement (if any), the Subsidiary Security Agreement (if any) and each of the other collateral assignments, security agreements, pledge agreements or other similar agreements, instruments or documents that creates or purports to create a Lien in favor of the Agent for the benefit of the Secured Parties.

Senior Officer” means (a) the chief executive officer, (b) the president, (c) any executive vice president, (d) the chief financial officer or (e) the treasurer, in each case of Borrower.

Senior Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) all Funded Debt that is secured Indebtedness of Borrower and its Restricted Subsidiaries, on a consolidated basis, on that date minus the aggregate amount of all Eligible Cash and Cash Equivalents on that date to (b) Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end (or Fiscal Year end in the case of the fourth Fiscal Quarter of any Fiscal Year) for which financial statements prepared on a consolidated basis in accordance with GAAP are available.

Series” has the meaning given in Section 2.8(c).

Seventh Amendment means that certain Seventh Amendment to Credit Agreement dated as of August 24, 2023 among Borrower, Agent and the Lenders party thereto.

Seventh Amendment Effective Date has the meaning assigned to such term in the Seventh Amendment.

Significant Domestic Subsidiary” means a Domestic Restricted Subsidiary that is a Significant Subsidiary, other than (i) any such Subsidiary that is an ECA Borrower or an ECA Guarantor, (ii) any such Subsidiary that is a Foreign Subsidiary Holdco, and (iii) any such Subsidiary that is a Subsidiary of IndigoInmarsat.

Significant Foreign Subsidiary” means a Foreign Restricted Subsidiary that is a Significant Subsidiary, other than any such Subsidiary that is an ECA Borrower or an ECA Guarantor.

Significant Foreign Subsidiary Holdco” means a Foreign Subsidiary Holdco that is a Significant Subsidiary, other than any such Subsidiary that is an ECA Borrower or an ECA Guarantor.

Significant Subsidiary” means a Restricted Subsidiary that either (i) had EBITDA (on a consolidated basis with its Restricted Subsidiaries) for the Fiscal Year then most recently ended

 

47


for which financial statements prepared on a consolidated basis in accordance with GAAP are available in excess of 7.5% of EBITDA for such Fiscal Year, (ii) had total assets (on a consolidated basis with its Restricted Subsidiaries) in excess of 7.5% of Consolidated Total Assets as at the end of the Fiscal Year then most recently ended for which financial statements prepared on a consolidated basis in accordance with GAAP are available or (iii) owns a Satellite (other than an Excluded Satellite).

SOFR means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).

Solvent” means, as of any date of determination, and as to any Person, that on such date: (a) the fair valuation of the assets of such Person is greater than the fair valuation of such Person’s probable liability in respect of existing debts; (b) such Person does not intend to, and does not believe that it will, incur debts beyond such Person’s ability to pay as such debts mature; (c) such Person is not engaged in a business or transaction, and is not about to engage in a business or transaction, which would leave such Person with assets remaining which would constitute unreasonably small capital after giving effect to the nature of the particular business or transaction; and (d) such Person is generally paying its debts as they become due. For the purpose of the foregoing (1) the “fair valuation” of any assets means the amount realizable within a reasonable time, either through collection or sale, of such assets at their regular market value, which is the amount obtainable by a capable and diligent businessman from an interested buyer willing to purchase such assets within a reasonable time under ordinary circumstances; and (2) the term “debts” includes any legal liability whether matured or unmatured, liquidated or unliquidated, absolute, fixed, or contingent.

“Special Eurodollar Circumstance” means the application or adoption after the Closing Date of any Law or interpretation, or any change therein or thereof, or any change in the interpretation or administration thereof by any Governmental Agency, central bank or comparable authority charged with the interpretation or administration thereof (including, without limitation, Dodd-Frank and Basel III, regardless of the date enacted, adopted or issued), or compliance by any Lender or its Eurodollar Lending Office with any request or directive (whether or not having the force of Law) of any such Governmental Agency, central bank or comparable authority.

Specified ECA Financing” means any Permitted ECA Financing for a Specified ECA Project.

Specified ECA Project” means any ECA Project with respect to which the Agent (for the benefit of the Secured Parties) has a pledge of (i) 65% of the voting Equity Interests of the first-tier Significant Foreign Subsidiary or Significant Foreign Subsidiary Holdco, as the case may be, that is a direct or indirect parent company of the ECA Borrowers or ECA Guarantors with respect to such ECA Project and (ii) 100% of the non-voting Equity Interests (if any) of the first-tier Foreign Subsidiary or Significant Foreign Subsidiary Holdco, as the case may be, that is a direct or indirect parent company of the ECA Borrowers or ECA Guarantors with respect to such ECA Project, in each case whether or not such pledge is required under the Loan Documents.

Specified Loan Party” has the meaning given in Section 11.28.

 

48


Spot Rate” means, with respect to any Foreign Currency Letter of Credit, the rate determined by the Issuing Lender with respect thereto to be the rate quoted by it as the spot rate for the purchase by it of Dollars with the applicable Permitted Foreign Currency through its foreign exchange trading office at approximately 11:00 a.m. (LondonNew York time) on the date as of which the foreign exchange computation is made.

Springing Maturity Date means the earliest to occur of (a) the date that is 91 days prior to the maturity date of the 2025 Senior Notes if more than the Threshold Amount of the 2025 Senior Notes are outstanding as of such date and Springing Liquidity as of such date is less than the aggregate principal amount of the 2025 Senior Notes that are then outstanding, (b) the date that is 91 days prior to the maturity date of the 2027 Senior Secured Notes if more than the Threshold Amount of the 2027 Senior Secured Notes are outstanding as of such date and Springing Liquidity as of such date is less than the aggregate principal amount of the 2027 Senior Secured Notes that are then outstanding, (c) the date that is 91 days prior to the maturity date of the 2028 Senior Notes if more than the Threshold Amount of the 2028 Senior Notes are outstanding as of such date and Springing Liquidity as of such date is less than the aggregate principal amount of the 2028 Senior Notes that are then outstanding, (d) the date that is 91 days prior to the maturity date of the Inmarsat Senior Secured Notes if more than the Threshold Amount of the Inmarsat Senior Secured Notes are outstanding as of such date and Springing Liquidity as of such date is less than the aggregate principal amount of the Inmarsat Senior Secured Notes that are then outstanding, and (e) the date that is 91 days prior to the maturity date of the Inmarsat Senior Secured Term Loan Facility if more than the Threshold Amount of the Inmarsat Senior Secured Term Loan Facility is outstanding as of such date and Springing Liquidity as of such date is less than the aggregate principal amount of the Inmarsat Senior Secured Term Loan Facility that is then outstanding.

Springing Liquidity means, as of any date of determination, the sum of (x) all Cash and Cash Equivalents held by Borrower and its Restricted Subsidiaries plus (y) the maximum aggregate unused Revolving Commitment and any other revolving commitment of Borrower and its Restricted Subsidiaries (with a tenor that is at least as long as the remaining tenor of the Revolving Commitment) to the extent unused as of such date that is available for general corporate purposes, the availability of which is subject to the making of representations and warranties similar to those contained in Article 4 of this Agreement.

Standby Letter of Credit” means each Letter of Credit issued by an Issuing Lender pursuant to Section 2.4 to support the payment or performance of an obligation by Borrower or any of its Restricted Subsidiaries and providing for the payment of cash upon the honoring of a presentation thereunder.

Stockholders’ Equity” means, as of any date of determination and with respect to any Person, the consolidated stockholders’ equity of the Person as of that date determined in accordance with GAAP; provided that there shall be excluded from Stockholders’ Equity any amount attributable to Disqualified Stock.

Subordinated Obligations” means any Indebtedness of Borrower that (a) does not have any scheduled principal payment, mandatory principal prepayment or sinking fund payment due

 

49


prior to the date that is one year after the latest applicable Maturity Date (unless permitted under an Affiliate Subordination Agreement), (b) is not secured by any Lien on any Property of Borrower or any of its Subsidiaries, (c) is not guaranteed by any Subsidiary of Borrower unless, if such Subsidiary is a party to the Subsidiary Guaranty, such guaranty of such Indebtedness is subordinated to the Subsidiary Guaranty pursuant to a Subordination Agreement or an Affiliate Subordination Agreement, as applicable, and (d) is subordinated pursuant to a Subordination Agreement or an Affiliate Subordination Agreement, as applicable. For the avoidance of doubt, the 2025 Senior Notes and any Permitted Additional Indebtedness do not constitute Subordinated Obligations, in each case, unless otherwise explicitly stated by their terms to be “Subordinated Obligations” hereunder.

Subordination Agreement” means a subordination agreement substantially in the form attached hereto as Exhibit F-2 with such modifications, if any, subject to the Agent’s reasonable approval.

Subsidiary” means, as of any date of determination and with respect to any Person, any corporation, limited liability company or partnership (whether or not, in any case, characterized as such or as a “joint venture”), whether now existing or hereafter organized or acquired: (a) in the case of a corporation or limited liability company, of which a majority of the Equity Interests having ordinary voting power for the election of directors or other governing body (other than securities having such power only by reason of the happening of a contingency) are at the time beneficially owned by such Person and/or one or more Subsidiaries of such Person, or (b) in the case of a partnership, of which a majority of the partnership or other ownership interests are at the time beneficially owned by such Person and/or one or more of its Subsidiaries.

Subsidiary Guarantors” means all Significant Domestic Subsidiaries and each other Restricted Subsidiary of Borrower that guarantees the Secured Obligations pursuant to the Subsidiary Guaranty from time to time; provided that no ECA Borrower or ECA Guarantor shall be required to be a Subsidiary Guarantor while it is an ECA Borrower or ECA Guarantor under a Permitted ECA Financing.

Subsidiary Guaranty” means the Subsidiary Guaranty, in substantially the form attached as Exhibit O hereto, by and among the Subsidiary Guarantors and the Agent for the benefit of the Secured Parties.

Subsidiary Pledge Agreement” means the Subsidiary Pledge Agreement, in substantially the form attached as Exhibit P hereto, by and among the Subsidiary Guarantors and the Agent for the benefit of the Secured Parties.

Subsidiary Security Agreement” means the Subsidiary Security Agreement, in substantially the form attached as Exhibit Q hereto, by and among the Subsidiary Guarantors and the Agent for the benefit of the Secured Parties.

Succeeding Years” has the meaning given in Section 7.1(d).

Successor Rate has the meaning assigned to such term in Section 2.13.

Supported QFC has the meaning assigned to such term in Section 11.30.

 

 

50


Swap Obligation” means with respect to any Subsidiary Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Swing Line” means the revolving credit loans to be advanced to Borrower by the Swing Line Lender pursuant to Section 2.9, in an aggregate amount (subject to the terms hereof), not to exceed, at any one time outstanding, the Swing Line Maximum Amount. The Swing Line is part of, and not in addition to, the Revolving Credit Facility.

Swing Line Advance” means a borrowing requested by Borrower and made by Swing Line Lender pursuant to Section 2.9.

Swing Line Lender” means MUFG, in its capacity as lender of the Swing Line under Section 2.9, or its successor as subsequently designated hereunder.

Swing Line Maximum Amount” means Twenty Million Dollars ($20,000,000).

Swing Line Note” means any of the promissory notes made by Borrower to Swing Line Lender evidencing Swing Line Advances substantially in the form of Exhibit E-2.

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

Temporary Leverage Increase” has the meaning assigned to such term in Section 6.13.

Term Loan Commitment” means any New Term Loan Commitment and any Extended Term Loan Commitment.

Term Loan Lender” means each Lender that has a Term Loan Commitment or that holds a Term Loan.

Term Loans” means the New Term Loans and the Extended Term Loans.

Term SOFR means:

(a)     for any Term SOFR Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Term SOFR Period with a term equivalent to such Term SOFR Period; provided that if as of 5:00 p.m. (New York City time) on such determination date the Term SOFR Screen Rate for the applicable tenor has not been published by CME (or any successor administrator satisfactory to the Agent) and a Term SOFR Replacement Date with respect to the Term SOFR Screen Rate has not occurred, then Term SOFR will be the Term SOFR Screen Rate for such tenor as published by CME (or any successor administrator satisfactory to the Agent) on the first preceding U.S. Government Securities Business Day for which such Term SOFR Screen Rate for such tenor was published by CME (or any successor administrator satisfactory to the Agent) so

 

51


long as such first preceding U.S. Government Securities Business Day is not more than three U.S. Government Securities Business Days prior to such determination date; and

(b)     for any interest calculation with respect to an Alternate Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to such date with a term of one month commencing that day; provided that if as of 5:00 p.m. (New York City time) on such determination date the Term SOFR Screen Rate for the applicable tenor has not been published by CME (or any successor administrator satisfactory to the Agent) and a Term SOFR Replacement Date with respect to the Term SOFR Screen Rate has not occurred, then Term SOFR will be the Term SOFR Screen Rate for such tenor as published by CME (or any successor administrator satisfactory to the Agent) on the first preceding U.S. Government Securities Business Day for which such Term SOFR Screen Rate for such tenor was published by CME (or any successor administrator satisfactory to the Agent) so long as such first preceding U.S. Government Securities Business Day is not more than three U.S. Government Securities Business Days prior to such determination date;

provided that if the Term SOFR determined in accordance with either of the foregoing clauses (a) or (b) of this definition would otherwise be less than 0.00%, then Term SOFR shall be deemed 0.00% per annum for such Loans.

Term SOFR Advance means an Advance under the Commitment made hereunder, under a New Term Facility Supplement or an Extended Facility Agreement and in each case specified to be a Term SOFR Advance in accordance with Article 2 or under such New Term Facility Supplement or an Extended Facility Agreement, as applicable.

“Term SOFR Loan means a Loan that bears interest at a rate based on Term SOFR, other than pursuant to clause (c) of the definition of Alternate Base Rate.

Term SOFR Period means, as to each Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date one, three or six months thereafter (in each case, subject to the availability), in each case as selected by Borrower in its Request for Loan; provided that:

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

(2) any Term SOFR Period that begins on the last Banking 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 Term SOFR Period) shall end on the last Banking Day of the calendar month at the end of such Term SOFR Period; and

(3) no Term SOFR Period shall extend beyond the applicable Maturity Date of the applicable tranche of Loans.

 

52


Term SOFR Replacement Date has the meaning specified in Section 2.13(b)(ii).

“Term SOFR Screen Rate means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time).

Threshold Amount means $150,000,000.

to the best knowledge of” means, when modifying a representation, warranty or other statement of Borrower, that the facts or situation described therein is known by a Senior Officer, or with the exercise of reasonable due diligence under the circumstances (in accordance with the standard of what a reasonable Person in similar circumstances would have done) would have been known by a Senior Officer.

Total Leverage Ratio” means, as of any date of determination, the ratio of (a) all Funded Debt of Borrower and its Restricted Subsidiaries, on a consolidated basis, on that date minus the aggregate amount of all Eligible Cash and Cash Equivalents on that date, to (b) Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end (or Fiscal Year end in the case of the fourth Fiscal Quarter of any Fiscal Year) for which financial statements prepared on a consolidated basis in accordance with GAAP are available.

Trellisware” means Trellisware Technologies, Inc., a Delaware corporation.

type,” when used with respect to any Loan or Advance, means the designation of whether such Loan or Advance is an Alternate Base Rate Loan or Advance, or a Eurodollar RateTerm SOFR Loan or Advance.

UK Financial Institution means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

UK Resolution Authority means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

Unrestricted Subsidiary” means (a) until such time, if any, as it has been designated as a Restricted Subsidiary pursuant to Section 5.11, Trellisware, (b) until such time, if any, as it has been designated as a Restricted Subsidiary pursuant to Section 5.11, Euro BroadbandViasat Europe Sà rl, a Switzerland socié té à responsabilité limitée , (c) any Subsidiary of Borrower (whether formed or acquired before, on or after the Closing Date) that is designated as an Unrestricted Subsidiary by Borrower pursuant to Section 5.11, and (d) any Subsidiary of an Unrestricted Subsidiary.

 

 

53


Unsubmitted Eligible Invoices” means, as of any date of determination, invoices with respect to an ECA Project that have not been submitted to the relevant ECA Lender for reimbursement pursuant to the relevant Permitted ECA Financing.

U.S. Government Securities Business Day means any Banking Day, except any Banking Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.

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

U.S. Special Resolution Regimes has the meaning assigned to such term in Section 11.30.

Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

Weighted Average Yield” means with respect to any Loan, on any date of determination, the weighted average yield to maturity, in each case, based on the interest rate applicable to such Loan on such date and giving effect to all upfront or similar fees or original issue discount payable with respect to such Loan.

Wholly-Owned Restricted Subsidiary” means a Wholly-Owned Subsidiary that is a Restricted Subsidiary.

Wholly-Owned Subsidiary” means a Subsidiary of Borrower, 100% of the Equity Interests of which are owned, directly or indirectly, by Borrower, except for director’s qualifying shares required by applicable Laws.

Withdrawal Liability means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Withholding Agent” means Borrower and the Agent.

Write-Down and Conversion Powers” means, (a)  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., and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or

 

54


part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

Section 1.2    1.2 Use of Defined Terms. Any defined term used in the plural shall refer to all members of the relevant class, and any defined term used in the singular shall refer to any one or more of the members of the relevant class. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, extended, renewed, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, amendments and restatements, extensions, renewals, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, whether real, personal or mixed, including cash, securities, accounts and contract rights, and (g) any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person, and any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

Section 1.3    Accounting TermsAccounting Terms. All accounting terms not specifically defined in this Agreement shall be construed in conformity with, and all financial data required to be submitted by this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, except as otherwise specifically prescribed herein. In the event that GAAP changes during the term of this Agreement such that the covenants contained in Sections 6.13 and 6.14 would then be calculated in a different manner or with different components, Borrower and the Lenders agree to amend this Agreement in such respects as are necessary to conform those covenants as criteria for evaluating Borrower’s financial condition to substantially the same criteria as were effective prior to such change in GAAP and Borrower shall be deemed to be in compliance with the covenants contained in the aforesaid Sections if and to the extent that Borrower would have been in compliance therewith under GAAP as in effect immediately prior to such change, but shall have the obligation to deliver each of the materials described in Article 7 to the Agent and the Lenders, on the dates therein specified, with financial data presented in a manner which conforms with GAAP as in effect immediately prior to such change. However, notwithstanding any change in GAAP after the Closing Date that would require lease obligations that would be treated as operating leases as of the Closing Date to be classified and accounted for

 

55


as Capital Leases or otherwise reflected on Borrower’s consolidated balance sheet, such obligations shall continue to be excluded from the definitions of Indebtedness, Capital Leases and Capital Lease Obligations. Notwithstanding any other provision contained herein (i) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of Borrower or any Restricted Subsidiary at “fair value”, as defined therein and (ii) for purposes of any financial calculation hereunder (including the definition of Indebtedness, Capital Leases and Capital Lease Obligations) lease obligations of IndigoInmarsat and its Subsidiaries shall be accounted for in a manner consistent with the Borrower’s existing lease accounting as of the Fifth Amendment Effective Date (and without regard to IFRS 16).

Section 1.4    RoundingRounding. Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed in this Agreement and rounding the result up or down to the nearest number (with a round-up if there is no nearest number) to the number of places by which such ratio is expressed in this Agreement.

Section 1.5    1.5 Exhibits and Schedules. All Exhibits and Schedules to this Agreement, either as originally existing or as the same may from time to time be supplemented, modified or amended, are incorporated herein by this reference. A matter disclosed on any Schedule shall be deemed disclosed on all Schedules.

Section 1.6    1.6References to Borrower and its Restricted Subsidiaries. Any reference herein to “Borrower and its Restricted Subsidiaries” or the like shall refer solely to Borrower during such times, if any, as Borrower shall have no Restricted Subsidiaries.

Section 1.7     Miscellaneous TermsMiscellaneous Terms. The term “or” is disjunctive; the term “and” is conjunctive. The term “shall” is mandatory; the term “may” is permissive. Masculine terms also apply to females; feminine terms also apply to males. The term “including” is by way of example and not limitation.

Section 1.8    1.8 Times of Day; Rates. Unless otherwise specified, all references herein to times of day shall be references to Pacific time (daylight or standard, as applicable). The Agent does not warrant, nor accept responsibility, nor shall the Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar RateTerm SOFR ” or with respect to any comparable or successor rate thereto.

Section 1.9    1.9 Limited Condition Transactions..

To the extent that the terms of this Agreement require (i) pro forma compliance with the Interest Coverage Ratio, the Total Leverage Ratio, the First Lien Leverage Ratio or the Senior Secured Leverage Ratio, (ii) compliance with the amount or availability of New Commitments permitted to be incurred or established in accordance with Section 2.8 (including for purposes of incurring Incremental Equivalent Indebtedness in lieu of New Commitments), the Available

 

56


Basket Amount or any other basket measured as a percentage of EBITDA, or (iii) the absence of a Default or Event of Default as a condition precedent to the consummation of a Limited Condition Transaction, the date of determination as to the whether the relevant condition is satisfied (the “LCT Test Date”) shall, at the election of Borrower (an “LCT Election”), be the date of execution of the definitive agreements for such Limited Condition Transaction, immediately after giving effect to such Limited Condition Transaction on a Pro Forma Basis and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the applicable test period; provided that in connection with any Limited Condition Transaction for which an LCT Election has been made, it shall be a condition to the consummation of such Limited Condition Transaction that, as of the date of such consummation, no Event of Default under Section 9.1(a), 9.1(b) or 9.1(j) exists or would result therefrom.

For the avoidance of doubt if any of such ratios or amounts for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in such ratio or amount (including due to fluctuations in EBITDA of Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios or amounts will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken.

If Borrower makes an LCT Election, then in connection with any calculation of any ratio, test or basket availability with respect to any transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether such subsequent transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis (i) assuming that such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming that such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated. For the avoidance of doubt, notwithstanding anything in this Section 1.9 to the contrary, the requirements of Section 8.2 are required to be satisfied in connection with any extensions of credit (except as expressly provided in Section 2.8 in connection with New Term Loan Commitments.

ARTICLE 2

LOANS AND LETTERS OF CREDIT

Section  2.1    2.1 Loans – General..

(a)    Subject to the terms and conditions set forth in this Agreement, at any time and from time to time from the Closing Date through the applicable Revolving Loan Maturity Date, each Revolving Lender shall, pro rata according to that Lender’s Pro Rata Share of the then applicable Revolving Commitment, make Advances in Dollars to Borrower under the Revolving

 

57


Commitment in such amounts as Borrower may request that do not result in the sum of (i) the Outstanding Amount of all Revolving Loans, (ii) the Outstanding Amount of all Swing Line Advances and (iii) the Outstanding Amount of all L/C Obligations to exceed the then applicable Revolving Commitment. Subject to the limitations set forth herein, Borrower may borrow, repay and reborrow under the Revolving Commitment without premium or penalty. Subject to the terms and conditions set forth in this Agreement and in the applicable New Term Facility Supplement, each Term Loan Lender shall, pro rata according to that Lender’s Pro Rata Share of the relevant New Term Commitment, make Advances of the relevant New Term Loan to Borrower. Amounts repaid on a Term Loan may not be reborrowed.

(b)    Subject to the next sentence, each Loan shall be made pursuant to a Request for Loan which shall specify the requested (i) date of such Loan, (ii) type(s) of Loan, (iii) amount of such Loan, and (iv) in the case of a Eurodollar RateTerm SOFR Loan, the EurodollarTerm SOFR Period for such Loan. Unless the Agent has notified, in its reasonable discretion, Borrower to the contrary, a Loan may be requested by telephone by a Responsible Official of Borrower, in which case Borrower shall confirm such request by promptly delivering a Request for Loan (conforming to the preceding sentence) in person or by facsimile or electronic communication to the Agent. The Agent shall incur no liability whatsoever hereunder in acting upon any telephonic request for Loan purportedly made by a Responsible Official of Borrower, and Borrower hereby agrees to indemnify the Agent from any loss, cost, expense or liability as a result of so acting.

(c)    Promptly following receipt of a Request for Loan, the Agent shall notify each Lender by electronic mail, telephone, facsimile or posting on the Platform (and if by telephone, promptly confirmed by facsimile) of the date and type of the Loan, the applicable EurodollarTerm SOFR Period, and that Lender’s Pro Rata Share of the Loan. Not later than 12:00 p.m. on the date specified for any Loan (which must be a Banking Day), each Lender shall make its Pro Rata Share of the Loan in immediately available funds available to the Agent at the Agent’s Office. Upon satisfaction or waiver of the applicable conditions set forth in Article 8 and, if applicable, any New Term Facility Supplement and Extended Facility Agreement, all Advances shall be credited on that date in immediately available funds to the Designated Deposit Account.

(d)    Unless the Requisite Lenders otherwise consent, each Loan which is an Alternate Base Rate Loan shall be not less than $1,000,000 and in an integral multiple of $500,000 and each Loan which is a Eurodollar RateTerm SOFR Loan shall be not less than $5,000,000 and in an integral multiple of $1,000,000. Unless the Swing Line Lender otherwise consents, each Swing Line Advance shall be not less than $250,000 and in an integral multiple of $250,000.

(e)    If requested by any Lender, the Advances made by each Lender under any Commitment shall be evidenced by a Note.

(f)    A Request for Loan that is a Eurodollar RateTerm SOFR Loan shall become irrevocable three Eurodollar BankingU.S. Government Securities Business Days before the requested date of the Loan.    A Request for Loan that is an Alternate Base Rate Loan shall become irrevocable one Banking Day before the requested date of the Loan.

(g)    If no Request for Loan (or telephonic request for Loan referred to in the second sentence of Section 2.1(c), if applicable) has been made within the requisite notice periods

 

58


set forth in Section 2.2 or 2.3 prior to the end of the EurodollarTerm SOFR Period for any outstanding Eurodollar RateTerm SOFR Loan, then on the last day of such EurodollarTerm SOFR Period, such Eurodollar RateTerm SOFR Loan shall be automatically converted into an Alternate Base Rate Loan in the same amount.

(h)     With respect to SOFR or Term SOFR, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with respect to any such amendment effected, the Agent shall post each such amendment implementing such Conforming Changes to Borrower and the Lenders reasonably promptly after such amendment becomes effective.

Section 2.2    2.2 Alternate Base Rate Loans. Each request by Borrower for an Alternate Base Rate Loan shall be made pursuant to a Request for Loan (or telephonic or other request for loan referred to in the second sentence of Section 2.1(b), if applicable) received by the Agent, at the Agent’s Office, not later than 10:00 a.m., on the date (which must be a Banking Day) immediately prior to the date of the requested Alternate Base Rate Loan. All Loans shall constitute Alternate Base Rate Loans unless properly designated as a Eurodollar RateTerm SOFR Loan pursuant to Section 2.3.

Section 2.3    2.3 Eurodollar RateTerm SOFR Loans..

(a)    Each request by Borrower for a Eurodollar RateTerm SOFR Loan shall be made pursuant to a Request for Loan (or telephonic or other request for Loan referred to in the second sentence of Section 2.1(b), if applicable) received by the Agent, at the Agent’s Office, not later than 9:00 a.m11:00 a.m., at least three (3) Eurodollar BankingU.S. Government Securities Business Days before the first day of the applicable EurodollarTerm SOFR Period.

(b)    OnIn the case of a Term SOFR Loan, on the date which is two (2) Eurodollar BankingU.S. Government Securities Business Days before the first day of the applicable EurodollarTerm SOFR Period, the Agent shall confirm its determination of the applicable Eurodollar RateTerm SOFR (which determination shall be conclusive in the absence of manifest error) and promptly shall give notice of the same to Borrower and the Lenders by telephone or facsimile (and if by telephone, promptly confirmed by facsimile).

(c)    Unless the Agent and the Requisite Lenders otherwise consent, no more than ten (10) Eurodollar RateTerm SOFR Loans shall be outstanding at any one time.

(d)    No Eurodollar RateTerm SOFR Loan may be requested during the continuation of a Default or Event of Default.

(e) Nothing contained herein shall require any Lender to fund any Eurodollar Rate Advance in the Designated Eurodollar Market.

Section 2.4    2.4 Letters of Credit..

 

59


(a)    The Existing Letters of Credit described in Schedule 2.4 shall be Letters of Credit for all purposes under this Agreement.

(1)    (1)    Subject to the terms and conditions hereof, at any time and from time to time from the Closing Date through the Revolving Loan Maturity Date applicable to the Issuing Lender, the Issuing Lender shall, in reliance upon the agreements of the Lenders set forth in this Section 2.4, issue such Letters of Credit under the Revolving Commitment as Borrower may request by a Request for Letter of Credit for the account of Borrower or the account of any of its Subsidiaries; provided that:

(i)    after giving effect to all such Letters of Credit, the sum of:

(A)    the Outstanding Amount of all Revolving Loans; plus

(B)    the Outstanding Amount of all Swing Line Advances; plus

(C)    the Outstanding Amount of all L/C Obligations, does not exceed the then applicable Revolving Commitment; and

(ii)    the Outstanding Amount of all L/C Obligations does not exceed the Letter of Credit Sublimit;

(2)     (2)     Each Letter of Credit shall be in a form reasonably acceptable to the Issuing Lender.;

(3)     (3)    Unless all the Revolving Lenders otherwise consent in a writing delivered to the Agent, the term of any Letter of Credit (other than any Existing Letters of Credit) shall not exceed twenty four (24) months.thirty six (36) months; provided, however, that a Letter of Credit may, if requested by Borrower, provide by its terms, and on terms acceptable to the applicable Issuing Lender in its sole discretion, for extension for successive periods of one year or less (but not beyond the Revolving Loan Maturity Date (subject to clause (4) below)) (an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit shall permit the applicable Issuing Lender to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon by the Borrower and the applicable Issuing Lender at the time such Letter of Credit is issued; provided, further, that the applicable Issuing Lender shall not (i) permit any such extension if (A) such Issuing Lender has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its extended form under the terms hereof or (B) it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven Business Days before the Non-Extension Notice Date from the Agent that the Requisite Lenders have elected not to permit such extension or (ii) be obligated to permit such extension if it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven Business Days before the Non-Extension Notice Date from the Administrative Agent, any Revolving Lender or the

 

60


Borrower that one or more of the applicable conditions set forth in Section 8.2 is not then satisfied, and in each such case directing such Issuing Lender not to permit such extension; and

(4)      (4)    The term of any Letter of Credit shall not extend beyond the latest Revolving Loan Maturity Date unless all Revolving Lenders and the Issuing Lender of such Letter of Credit otherwise consentconsents in a writing delivered to the Agent and as a condition thereto Borrower provides Cash Collateral to thesuch Issuing Lender on or prior to the latest Revolving Loan Maturity Dateas provided in Section 2.11(a)(iv).

(b)    Each Request for Letter of Credit shall be submitted to the Issuing Lender, with a copy to the Agent, at least two (2) Banking Days prior to the date upon which the related Letter of Credit is proposed to be issued. The Agent shall promptly notify the Issuing Lender whether such Request for Letter of Credit, and the issuance of a Letter of Credit pursuant thereto, conforms to the requirements of this Agreement (including whether there exists sufficient availability under the Revolving Commitments). Unless the Agent provides written notice to the applicable Issuing Lender at least one (1) Banking Day prior to the requested date of issuance that the issuance of such letter of credit does not conform to the requirements of this Agreement, then, subject to the terms and conditions hereof, such Issuing Lender shall, on the requested date, issue a Letter of Credit hereunder. Upon issuance of a Letter of Credit, the Issuing Lender shall promptly notify the Agent, and the Agent shall promptly notify the Revolving Lenders, of the amount and terms thereof. Such Request for Letter of Credit may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the Issuing Lender, by personal delivery or by any other means acceptable to the Issuing Lender.

(c)    Upon the issuance of a Letter of Credit, each Revolving Lender shall be deemed to have purchased a pro rata participation in such Letter of Credit from the Issuing Lender in an amount equal to that Lender’s Pro Rata Share of the Revolving Commitment. Without limiting the scope and nature of each Revolving Lender’s participation in any Letter of Credit, to the extent that the Issuing Lender has not been reimbursed by Borrower for any payment required to be made by the Issuing Lender under any Letter of Credit, each Revolving Lender shall, pro rata according to its Pro Rata Share, reimburse the Issuing Lender through the Agent promptly upon demand for the amount of such payment. The obligation of each Revolving Lender to so reimburse the Issuing Lender shall be absolute and unconditional and shall not be affected by the occurrence of an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair the obligation of Borrower to reimburse the Issuing Lender for the amount of any payment made by the Issuing Lender under any Letter of Credit together with interest as hereinafter provided.

(d)    Borrower agrees to pay to the Issuing Lender through the Agent an amount equal to any payment made by the Issuing Lender with respect to each Letter of Credit within one (1) Banking Day after demand made by the Issuing Lender therefor, together with interest on such amount from the date of any payment made by the Issuing Lender at the rate applicable to Alternate Base Rate Loans for two (2) Banking Days and thereafter at the Default Rate. The principal amount of any such payment shall be used to reimburse the Issuing Lender for the payment made by it under the Letter of Credit and, to the extent that the Revolving Lenders have not reimbursed the Issuing Lender pursuant to Section 2.4(c), the interest amount of any such payment shall be for

 

61


the account of the Issuing Lender. Each Revolving Lender that has reimbursed the Issuing Lender pursuant to Section 2.4(c) for its Pro Rata Share of any payment made by the Issuing Lender under a Letter of Credit shall thereupon acquire a pro rata participation, to the extent of such reimbursement, in the claim of the Issuing Lender against Borrower for reimbursement of principal and interest under this Section 2.4(d) and shall share, in accordance with that pro rata participation, in any principal payment made by Borrower with respect to such claim and in any interest payment made by Borrower (but only with respect to periods subsequent to the date such Lender reimbursed the Issuing Lender) with respect to such claim.

(e)    Borrower may, pursuant to a Request for Loan, request that Advances made under the Revolving Commitment be made pursuant to Section 2.1(a) to provide funds for the payment required by Section 2.4(d) and, for this purpose, the conditions precedent set forth in Article 8 shall not apply. The proceeds of such Advances shall be paid directly to the Issuing Lender to reimburse it for the payment made by it under the Letter of Credit.

(f)    If Borrower fails to make the payment required by Section 2.4(d) within the time period therein set forth, in lieu of the reimbursement to the Issuing Lender under Section 2.4(c) the Issuing Lender may (but is not required to), without notice to or the consent of Borrower, instruct the Agent to cause L/C Advances to be made by the Revolving Lenders under the Revolving Commitment in an aggregate amount equal to the amount paid by the Issuing Lender with respect to that Letter of Credit and, for this purpose, the conditions precedent set forth in Article 8 shall not apply. The proceeds of such L/C Advances shall be paid directly to the Issuing Lender to reimburse it for the payment made by it under the Letter of Credit.

(g)    The issuance of any supplement, modification, amendment, renewal, or extension to or of any Letter of Credit shall be treated in all respects the same as the issuance of a new Letter of Credit.

(h)    The obligation of Borrower to pay to the Issuing Lender the amount of any payment made by the Issuing Lender under any Letter of Credit shall be absolute, unconditional, and irrevocable, subject only to performance by the Issuing Lender of its obligations to Borrower under Uniform Commercial Code Section 5109. Without limiting the foregoing, Borrower’s obligations shall not be affected by any of the following circumstances:

(i)    any lack of validity or enforceability prior to its stated expiration date of the Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;

(ii)    any amendment or waiver of or any consent to departure from the Letter of Credit, this Agreement, or any other agreement or instrument relating thereto, with the consent of Borrower;

(iii)    the existence of any claim, setoff, defense, or other rights which Borrower or any Subsidiary may have at any time against the Issuing Lender, the Agent or any Lender, any beneficiary of the Letter of Credit (or any persons or entities for whom any such beneficiary may be acting) or any other Person, whether in connection with the

 

62


Letter of Credit, this Agreement, or any other agreement or instrument relating thereto, or any unrelated transactions;

(iv)    any demand, statement, or any other document presented under the Letter of Credit proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever so long as any such document appeared substantially to comply with the terms of the Letter of Credit;

(v)    payment by the Issuing Lender in good faith under the Letter of Credit against presentation of a draft or any accompanying document which does not strictly comply with the terms of the Letter of Credit, unless the acceptance of such draft or other accompanying document constituted gross negligence;

(vi)    the existence, character, quality, quantity, condition, packing, value or delivery of any Property purported to be represented by documents presented in connection with any Letter of Credit or any difference between any such Property and the character, quality, quantity, condition, or value of such Property as described in such documents;

(vii)    the time, place, manner, order or contents of shipments or deliveries of Property as described in documents presented in connection with any Letter of Credit or the existence, nature and extent of any insurance relative thereto;

(viii)    the solvency or financial responsibility of any party issuing any documents in connection with a Letter of Credit;

(ix)    any failure or delay in notice of shipments or arrival of any Property;

(x)    any error in the transmission of any message relating to a Letter of Credit not caused by the Issuing Lender, or any delay or interruption in any such message;

(xi)    any error, neglect or default of any correspondent of the Issuing Lender in connection with a Letter of Credit;

(xii)    any consequence arising from acts of God, war, insurrection, civil unrest, disturbances, labor disputes, emergency conditions or other causes beyond the control of the Issuing Lender;

(xiii)    so long as the Issuing Lender in good faith determines that the contract or document appears substantially to comply with the terms of the Letter of Credit, the form, accuracy, genuineness or legal effect of any contract or document referred to in any document submitted to the Issuing Lender in connection with a Letter of Credit unless the Issuing Lender’s actions constituted gross negligence; and

(xiv)    where the Issuing Lender has acted in good faith and observed general banking usage, any other circumstances whatsoever unless the Issuing Lender’s actions constituted gross negligence.

 

63


(i)    The Issuing Lender shall be entitled to the protection accorded to the Agent pursuant to Section 10.6, with all necessary changes.

(j)    The Uniform Customs and Practice for Documentary Credits, as published in its most current version by the International Chamber of Commerce, shall be deemed a part of this Section and shall apply to all Letters of Credit to the extent not inconsistent with applicable Law.

(k)    Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Request for Letter of Credit or other agreement entered into by Borrower and the Issuing Lender related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time; provided further, that if the amount of a Letter of Credit is revalued at a loss to the Issuing Lender upon drawing, Borrower shall indemnify the Issuing Lender for such loss.

(l)    If the Maturity Date in respect of any tranche of Revolving Commitments occurs prior to the expiration of any Letter of Credit (such maturity date, the “Earlier Revolving Commitment Maturity Date”), then (i) on such Earlier Revolving Commitment Maturity Date, if one or more other tranches of Revolving Commitments in respect of which the Maturity Date shall not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Lenders to purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to Section 2.4(c)) under (and ratably participated in by Revolving Lenders pursuant to) the Revolving Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to the immediately preceding clause (i), Borrower shall Cash Collateralize any such Letter of Credit. Except to the extent of reallocations of participations pursuant to clause (i) of the immediately preceding sentence, the occurrence of a Maturity Date with respect to a given tranche of Revolving Commitments shall have no effect upon (and shall not diminish) the percentage participations of the Revolving Lenders in any Letter of Credit issued before such Maturity Date.

(m)    After giving effect to Section 2.10(a)(4), the Issuing Lender shall not be under any obligation to issue any Letter of Credit if any Revolving Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Lender (in its sole discretion) with Borrower or such Defaulting Lender to eliminate the Issuing Lender’s actual or potential Fronting Exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or the Letter of Credit and all other L/C Obligations as to which the Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion.

 

64


(n)    Borrower may request that any Letter of Credit permitted to be issued under this Section 2.4 shall be denominated in a Permitted Foreign Currency; provided that (i) the aggregate maximum amount of all outstanding Letters of Credit, including the Dollar Equivalent of the aggregate maximum amount of such Foreign Currency Letter of Credit and all other outstanding Foreign Currency Letters of Credit, shall not exceed the Letter of Credit Sublimit and (ii) the Issuing Lender of such Letter of Credit shall have consented to such Permitted Foreign Currency. With respect to any Foreign Currency Letter of Credit requested hereunder, in addition to the information required elsewhere in this Section 2.4, Borrower shall set forth in the Request for Letter of Credit therefor (i) the Permitted Foreign Currency to be applicable to such Letter of Credit and (ii) its calculation of the usage as of such date of the Letter of Credit Sublimit (broken down by Letter of Credit, including each Foreign Currency Letter of Credit, and otherwise in form and detail acceptable to the Agent and the Issuing Lender).

(o)     Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse, indemnify and compensate the applicable Issuing Lender hereunder for any and all drawings under such Letter of Credit as if such Letter of Credit had been issued solely for the account of the Borrower. The Borrower irrevocably waives any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

With respect to each Foreign Currency Letter of Credit, the Issuing Lender thereof shall determine, and provide written notice to the Agent and Borrower of, the Spot Rate for such Letter of Credit as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Letters of Credit denominated in Permitted Foreign Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Borrower hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any Permitted Foreign Currency for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Issuing Lender of such Letter of Credit (written notice of which shall be given by the Issuing Lender to Borrower and the Agent, which notice shall include the calculation thereof) on the applicable date of determination on the basis of the Spot Rate for the purchase of Dollars with such Permitted Foreign Currency.

For the avoidance of doubt, (i) at any time when any Foreign Currency Letter of Credit shall be outstanding, any calculation under the Loan Documents of “L/C Obligations,” “Outstanding Amount,” or any similar calculation involving the amount of Letters of Credit, shall mean the Dollar Equivalent of such amount, (ii) all L/C Borrowings shall be denominated in Dollars and (iii) all repayments of drawing on Letters of Credit, including pursuant to Section 2.4(d) shall be made by Borrower in Dollars.

Section 2.5    2.5 Termination or Reduction of Revolving Commitment.

 

65


(a)    Optional. Borrower shall have the right, at any time and from time to time, without penalty or charge, upon at least five (5) Banking Days’ prior written notice by a Responsible Official of Borrower to the Agent, voluntarily to reduce, permanently and irrevocably, in aggregate principal amounts in an integral multiple of $1,000,000 but not less than $10,000,000, or to terminate, all or a portion of the then undisbursed portion of the Revolving Commitment; provided Borrower shall not terminate or reduce (A) the Revolving Commitment if, after giving effect thereto and to any concurrent prepayments hereunder, the total Revolving Loans outstanding would exceed the Revolving Commitment, or (B) Letter of Credit Sublimit if, after giving effect thereto, the aggregate amount of Letters of Credit outstanding that is not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit; provided further that (i) Borrower may terminate or reduce separately (I) any portion of the Revolving Credit Facility not constituting an Extended Revolving Credit Facility and (II) any Extended Revolving Credit Facility as specified in the notice and (ii) no Extended Revolving Credit Facility may be terminated or reduced pursuant to this Section 2.5(a) prior to the termination of each portion of the Revolving Credit Facility with an earlier Revolving Loan Maturity Date without the prior written consent of each Revolving Lender under each such portion of the Revolving Credit Facility. The Agent shall promptly notify the Lenders of any reduction or termination of the Revolving Commitment under this Section.

(b)    Mandatory. (i) Upon the occurrence of the Revolving Loan Maturity Date applicable to any portion of the Revolving Credit Facility, the Revolving Commitments applicable to such portion shall be automatically and permanently reduced to zero on such date.

(ii)    If after giving effect to any reduction or termination of Revolving Commitments under this Section 2.05, the Letter of Credit Sublimit exceeds the Revolving Commitment at such time, the Letter of Credit Sublimit shall be automatically reduced by the amount of such excess.

(c)    Application of Commitment Reductions. The Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit or the Revolving Commitment under this Section 2.5. Upon any reduction of the Revolving Commitments, unless otherwise permitted under this Section 2.5, the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s Pro Rata Share of such reduction amount. All fees in respect of the Revolving Commitment accrued until the effective date of any termination of such Revolving Commitment shall be paid on the effective date of such termination. In connection with the termination or reduction of any portion of the Revolving Credit Facility pursuant to this Section 2.5, Borrower shall prepay the Revolving Loans and L/C Advances of the Revolving Lenders whose Revolving Commitments have been so terminated or reduced to the extent necessary such that the Revolving Loans and L/C Advances of each Revolving Lender shall not exceed its Pro Rata Share of the Revolving Loans and L/C Advances after giving effect to such termination or reduction.

Section 2.6    2.6 Agent’s Right to Assume Funds Available for Advances. Unless the Agent shall have been notified by any Lender no later than 10:00 a.m. on the Banking Day of the proposed funding by the Agent of any Loan that such Lender does not intend to make available to the Agent such Lender’s portion of the total amount of such Loan, the Agent may assume that such Lender has made such amount available to the Agent on the date of the Loan and the Agent may, but shall not be obligated to, in reliance upon such assumption, make available to Borrower a

 

66


corresponding amount. If the Agent has made funds available to Borrower based on such assumption and such corresponding amount is not in fact made available to the Agent by such Lender, the Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Agent’s demand therefor, the Agent promptly shall notify Borrower and Borrower shall pay such corresponding amount to the Agent. The Agent also shall be entitled to recover from such Lender interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Agent to Borrower to the date such corresponding amount is recovered by the Agent, at a rate per annum equal to the daily Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its share of the Commitments or to prejudice any rights which the Agent or Borrower may have against any Lender as a result of any default by such Lender hereunder.

Section 2.7     CollateralCollateral . To the extent required in the Security Agreements, the Secured Obligations shall be secured by a first priority (subject to Liens permitted by Section 6.9) perfected Lien on the Collateral pursuant to the Security Agreements.

Section 2.8    2.8 Increase of Commitment..

(a)    Request for Increase. Borrower may at any time prior to the applicable Maturity Date, so long as, no Event of Default shall have occurred and be continuing (subject in the case of any New Term Loan Commitments (as defined below) established in connection with a Limited Condition Transaction to Section 1.9), request (i) increases of the Revolving Commitment (any such increase, the “New Revolving Commitments”) and/or (ii) the establishment of one or more new term loan commitments (the “New Term Loan Commitments” and, together with the New Revolving Commitments, the “New Commitments”) by notice to the Agent in writing of the amount of such proposed increase (such notice, a “Commitment Increase Notice”) (which shall promptly notify the Lenders being requested); provided, however, that any such request pursuant to a Commitment Increase Notice shall be in the minimum amount of $10,000,000 and the aggregate principal amount of New Commitments on and after the Closing Date shall not exceed the New Commitment Cap. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which Borrower proposes that the New Revolving Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Banking Days after the date on which such notice is delivered to the Agent (or such lesser period of time as may be agreed to by the Agent) and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender” or “New Term Loan Lender”, as applicable) to whom Borrower proposes any portion of such New Revolving Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations (but no Lender is obligated to accept such allocation); provided that Borrower may, in its sole discretion, offer to any existing Lender or other Person that is an Eligible Assignee the opportunity to participate in all or a portion of any such New Commitments and any such Lender or other Person approached to provide all or a portion of the New Commitments may elect or decline, in its sole discretion, to provide a New Commitment.

(b)    New Revolving Commitments. Each requested existing Revolving Lender shall notify the Agent in writing whether or not it agrees to increase its Revolving Commitment and, if it so agrees, provide the Agent prior to the Increased Amount Date with a copy of an

 

67


increased commitment letter executed by such Lender and Borrower, substantially in the form of Exhibit H attached hereto. Each New Revolving Loan Lender that is not an existing Revolving Lender shall become a Lender pursuant to a joinder agreement substantially in the form attached as Exhibit I hereto or otherwise in form and substance satisfactory to the Agent; provided that the commitment of each such New Revolving Loan Lender shall be in a minimum amount of $10,000,000. The terms and provisions of the loans made pursuant to such New Revolving Commitments shall be identical to the existing Revolving Loans. The Agent shall promptly notify Borrower and the Revolving Lenders, including each New Revolving Loan Lender, as applicable, in writing of the final allocation of such increase and the Increased Amount Date and shall provide to such parties a revised Schedule 1.1 reflecting the final allocation of such increase.

(c)    New Term Loan Commitment. The New Term Loan Commitments shall be effected pursuant to a New Term Facility Supplement executed and delivered by Borrower, the New Term Loan Lenders and Agent, each of which shall be recorded in the Register, and upon the effectiveness of such New Term Facility Supplement each such New Term Loan Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. The terms and provisions of each New Term Facility (including, subject to the following proviso, pricing terms and yield protection, if any) shall be set forth in the New Term Facility Supplement; provided that (i) the applicable maturity date of each Series shall be no shorter than the latest Revolving Loan Maturity Date, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by Borrower and the applicable New Term Loan Lenders and shall be set forth in each applicable New Term Facility Supplement and (iii) if such New Term Loan is a term loan B, such New Term Loan shall have terms that are consistent with current market terms for term loan Bs, as determined by Borrower in good faith. Each New Term Facility Supplement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the opinion of the Agent to effect the provision of this Section 2.8 and the Lenders hereto further agree that the New Term Lenders party to any New Term Facility Supplement may, from time to time, make amendments to such New Term Facility Supplement without the consent of any other Lenders so long as such New Term Facility Supplement, as amended, complies with the terms set forth in this Section 2.8. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the terms and conditions set forth in this Section 2.8(c) and Section 2.8(d), (i) each New Term Loan Lender of any Series shall make a loan to Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.

(d)    Conditions to Effectiveness of Increase. Such New Commitments shall become effective, as of such Increased Amount Date; provided that (1) both before and after giving effect to the making of any Series of New Term Loans or Revolving Loans with respect to the New Revolving Commitments, each of the conditions set forth in Section 8.2 shall be satisfied (provided that in the case of any New Term Loan Commitments, the proceeds of which are being used to finance a Limited Condition Transaction, (i) the satisfaction of such conditions shall be subject to Section 1.9, (ii) no Event of Default under Section 9.1(a), 9.1(b) or 9.1(j) shall exist at

 

68


the time of, or would result therefrom, the making of such New Term Loan and (iii) in the case of Section 8.2(a) and 8.2(b), such representations and warranties shall be limited to customary “specified representations” to the extent agreed to by Lenders providing such New Term Loan Commitments) and the Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Agent and consistent with those delivered on the Closing Date under Section 8.1 and such other conditions as the parties thereto shall agree (provided that in the case of any New Term Loan Commitments established in connection with a Limited Condition Transaction, the satisfaction of such documentary conditions shall be limited by customary “SunGard” provisions to the extent agreed to by Lenders providing such New Term Loan Commitments) and (2) if, on the Increased Amount Date with respect to any New Revolving Commitments, there are any Revolving Loans outstanding, such Revolving Loans shall on effectiveness of such New Revolving Commitments be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section  3.6(ed). On any date on which New Revolving Commitments are increased, subject to the satisfaction of the foregoing terms and conditions, (i) each of the Revolving Lenders (including the New Revolving Loan Lenders, if any) shall make such assignments of Revolving Loans outstanding on such date as shall be necessary in order that, after giving effect to all such assignments, such Revolving Loans will be held by the Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to such New Revolving Commitments hereunder, (ii) each New Revolving Commitment shall be deemed for all purposes a “Revolving Commitment” and each loan made thereunder shall be deemed, for all purposes, a “Revolving Loan”, (iii) each New Revolving Loan Lender shall become a “Lender” with respect to the New Revolving Commitment and all matters relating thereto and (iv) and Borrower shall compensate each existing Lender who shall have assigned any portion of any Eurodollar RateTerm SOFR Loans previously held by such Lender compensation in the amount that would have been payable to such Lender under Section 3.6(ed) hereof had Borrower made a prepayment of such Eurodollar RateTerm SOFR Loans by an amount equal to such assigned portion thereof. Upon any increase in the Revolving Commitment pursuant to this Section 2.8, Schedule 1.1 shall be deemed amended to reflect such new Revolving Commitment and Pro Rata Share of each Lender (including any New Revolving Loan Lender), as thereby increased or decreased, as appropriate.

Section 2.9     2.9 Swing Line Advances..

(a)    Commitment. Subject to the terms and conditions set forth in this Agreement (including without limitation the provisions of this Section 2.9), Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.9, agrees to make one or more Advances (each such advance being a “Swing Line Advance”) to Borrower from time to time on any Banking Day during the period from the Closing Date until (but excluding) the Revolving Loan Maturity Date applicable to the Swing Line Lender in an aggregate amount not to exceed at any one time outstanding the Swing Line Maximum Amount. Subject to the terms set forth herein, advances, repayments and readvances may be made under the Swing Line. Swing Line Advances requested by Borrower not later than 10:00 a.m. on a Banking Day shall be made by Swing Line Lender on such day. Swing Line Advances requested by Borrower after 10:00 a.m. on a Banking Day shall be made by Swing Line Lender as soon as possible, but no later than the following Banking Day.

 

69


(b)    Accrual of Interest and Maturity; Evidence of Indebtedness.

(i)    Swing Line Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of Borrower to Swing Line Lender resulting from each Swing Line Advance from time to time, including the amount and date of each Swing Line Advance, its Applicable Interest Rate, and the amount and date of any repayment made on any Swing Line Advance from time to time. The entries made in such account or accounts of Swing Line Lender shall be prima facie evidence, absent manifest error, of the existence and amounts of the obligations of Borrower therein recorded; provided, however, that the failure of Swing Line Lender to maintain such account, as applicable, or any error therein, shall not in any manner affect the obligation of Borrower to repay the Swing Line Advances (and all other amounts owing with respect thereto) in accordance with the terms of this Agreement. Solely for the purposes of this Section 2.9 with respect to Swing Line Advances, “Applicable Interest Rate” means, as of any date of determination, the Alternate Base Rate plus the Applicable Margin.

(ii)    Borrower agrees that, upon the written request of Swing Line Lender, Borrower will execute and deliver to Swing Line Lender a Swing Line Note.

(iii)    Borrower unconditionally promises to pay to the Swing Line Lender the then unpaid principal amount of such Swing Line Advance (plus all accrued and unpaid interest) on the Revolving Loan Maturity Date applicable to the Swing Line Lender and on such other dates and in such other amounts as may be required from time to time pursuant to this Agreement. Subject to the terms and conditions hereof, each Swing Line Advance shall, from time to time after the date of such Advance (until paid), bear interest at its Applicable Interest Rate.

(c)    Refunding of or Participation Interest in Swing Line Advances.

(i)    The Agent, at any time in its sole and absolute discretion, may, in each case on behalf of Borrower (which hereby irrevocably directs the Agent to act on their behalf) request each of the Revolving Lenders (including the Swing Line Lender in its capacity as a Lender) to make an Advance of the Revolving Loan to Borrower, in an amount equal to such Lender’s Pro Rata Share of the Revolving Commitment of the aggregate principal amount of the Swing Line Advances outstanding on the date such notice is given (the “Refunded Swing Line Advances”). The applicable Revolving Loan Advances used to refund any Swing Line Advances shall be Alternate Base Rate Advances. In connection with the making of any such Refunded Swing Line Advances or the purchase of a participation interest in Swing Line Advances under Section 2.9(c)(ii), the Swing Line Lender shall retain its claim against Borrower for any unpaid interest or fees in respect thereof accrued to the date of such refunding. Unless any of the events described in Section 9.1(j) shall have occurred (in which event the procedures of Section 2.9(c)(ii) shall apply) and regardless of whether the conditions precedent set forth in this Agreement to the making of a Revolving Loan Advance are then satisfied (but subject to Section 2.9(c)(iii)), each Revolving Lender shall make the proceeds of its Revolving Loan Advance available to the Agent for the benefit of the Swing Line Lender at the office of the Agent specified in Section 2.1(c) prior to 12:00 p.m. on the Banking Day next succeeding the date such

 

70


notice is given (which must be a Banking Day), in immediately available funds. The proceeds of such Revolving Loan Advances shall be immediately applied to repay the Refunded Swing Line Advances.

(ii)    If, prior to the making of an Advance of the Revolving Loan pursuant to Section 2.9(c)(i), one of the events described in Section 9.1(j) shall have occurred, each Revolving Lender will, on the date such Advance of the Revolving Loan was to have been made, purchase from the Swing Line Lender an undivided participating interest in each Swing Line Advance that was to have been refunded in an amount equal to its Pro Rata Share of the Revolving Commitment of such Swing Line Advance. Each Revolving Lender within the time periods specified in Section 2.9(c)(i), as applicable, shall immediately transfer to the Agent, for the benefit of the Swing Line Lender, in immediately available funds, an amount equal to its Pro Rata Share of the Revolving Commitment of the aggregate principal amount of all Swing Line Advances outstanding as of such date. Upon receipt thereof, the Agent will deliver to such Lender documentation evidencing such participation.

(iii)    Each Revolving Lender’s obligation to make Revolving Loan Advances to refund Swing Line Advances, and to purchase participation interests, in accordance with Sections 2.9(c)(i) and (ii), respectively, shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of any Default or Event of Default; (C) any adverse change in the condition (financial or otherwise) of Borrower or any other Person; (D) any breach of this Agreement or any other Loan Document by Borrower or any other Person; (E) any inability of Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan Advance is to be made or such participating interest is to be purchased; (F) the termination of the Revolving Commitment hereunder; or (G) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If any Revolving Lender does not make available to the Agent the amount required pursuant to Section 2.9(c)(i) or (ii), as the case may be, the Agent on behalf of the Swing Line Lender, shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date of non-payment until such amount is paid in full (x) for the first two (2) Banking Days such amount remains unpaid, at the Federal Funds Effective Rate and (y) thereafter, at the rate of interest then applicable to such Swing Line Advances. The obligation of any Revolving Lender to make available its pro rata portion of the amounts required pursuant to Section 2.9(c)(i) or (ii) shall not be affected by the failure of any other Lender to make such amounts available, and no Lender shall have any liability to Borrower, any Subsidiary Guarantor, the Agent, the Swing Line Lender, or any other Lender or any other party for another Lender’s failure to make available the amounts required under Section 2.9(c)(i) or (ii).

(iv)    Notwithstanding the foregoing, no Revolving Lender shall be required to make any Revolving Loan Advance to refund a Swing Line Advance or to purchase a participation in a Swing Line Advance if at least two (2) Banking Days prior to

 

71


the making of such Swing Line Advance by the Swing Line Lender, the officers of the Swing Line Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Agent or any Revolving Lender that Swing Line Advances should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the obligation of the Revolving Lenders to make such Revolving Loan Advances (or purchase such participations) shall be reinstated upon the date on which such Default or Event of Default has been waived by the requisite Lenders. In the event that the Swing Line Lender receives any such notice, the Swing Line Lender shall have no obligation to fund any Swing Line Advances until such notice is withdrawn by the Agent or such Lender or until the requisite Lenders have waived such Default or Event of Default in accordance with the terms of this Agreement.

(v)    Notwithstanding anything to the contrary in this Section 2.9 or elsewhere in this Agreement, the Swing Line Lender may terminate the Swing Line at any time in its sole discretion.

(d)    Extensions. If a Revolving Loan Maturity Date (the “Earlier Maturity Date”) shall have occurred at a time when another tranche or tranches of Revolving Commitments is or are in effect with a longer Maturity Date, then, on the Earlier Maturity Date, all then outstanding Swing Line Advances shall be repaid in full (and there shall be no adjustment to the participations in such Swing Line Advances as a result of the occurrence of the Earlier Maturity Date); provided, however, that if on the occurrence of the Earlier Maturity Date (after giving effect to any repayments of Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.4(l)), there shall exist sufficient undrawn amounts under the Extended Revolving Credit Facilities in effect after the occurrence of the Earlier Maturity Date so that the respective outstanding Swing Line Advances could be incurred pursuant to such Extended Revolving Credit Facilities, then (1) there shall be an automatic adjustment on the Earlier Maturity Date of the risk participations of the Revolving Lenders under such Extended Revolving Credit Facilities pro rata according to such Lender’s Pro Rata Share of the then applicable Commitments under such Extended Revolving Credit Facilities and such outstanding Swing Line Advances shall be deemed to have been incurred solely pursuant to the such Commitments and (2) such Swing Line Advances shall not be required to be repaid in full on the Earlier Maturity Date.

Section  2.10    2.10 Defaulting Lenders.

(a)    Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(1)     (1)     Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Requisite Lenders and Section 11.2.

(2)     (2)     Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 9 or otherwise)

 

72


or received by the Agent from a Defaulting Lender pursuant to Section 11.9 shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Lender or Swing Line Lender hereunder; third, to Cash Collateralize the Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.11; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement or any New Term Facility Supplement, as determined by the Agent; fifth, if so determined by the Agent and Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement or any New Term Facility Supplement and (y) Cash Collateralize the Issuing Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.11; sixth, to the payment of any amounts owing to the Lenders, the Issuing Lender or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or any New Term Facility Supplement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or any New Term Facility Supplement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Advances in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Sections 8.1 and 8.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to Section 2.10(a)(4). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.10(a)(2) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(3)     (3)     Certain Fees. (A) No Defaulting Lender shall be entitled to receive any commitment fee under Section 3.3 or under any New Term Facility Supplement for any period during which that Lender is a Defaulting Lender (and Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(A)    Each Defaulting Lender shall be entitled to receive Letter of Credit fees for any period during which that Lender is a Defaulting Lender only to

 

73


the extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.11.

(B)    With respect to any commitment fee payable under Section 3.3 or any New Term Facility Supplement or Letter of Credit fees not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Advances that has been reallocated to such Non-Defaulting Lender pursuant to clause (4) below, (y) pay to the Issuing Lender and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Lender’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

(4)     (4)     Reallocation of Pro Rata Shares to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and Swing Line Advances shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Sections 8.1 and 8.2 are satisfied at the time of such reallocation (and, unless Borrower shall have otherwise notified the Agent at such time, Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate principal amount of Revolving Loans and participations in L/C Obligations and Swing Line Loans of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. Subject to Section 11.29, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(5)     (5)     Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (4) above cannot, or can only partially, be effected, Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize the Issuing Lender’s Fronting Exposure in accordance with the procedures set forth in Section 2.11.

(b)    Defaulting Lender Cure. If Borrower, the Agent, the Swing Line Lender and the Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Commitments under the applicable Facility (without giving effect to Section 2.10(a)(4),

 

74


whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(c)    New Swing Line Loans/Letters of Credit. So long as any Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) the Issuing Lender shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

Section  2.11    2.11 Cash Collateral. .

(a)    Certain Credit Support Events. If (i) the Issuing Lender has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Revolving Loan Maturity Date, any L/C Obligation for any reason remains outstanding, (iii) Borrower shall be required to provide Cash Collateral pursuant to Section 9.2, or (iv) Borrower provides Cash Collateral pursuant to Section 2.4(a)(4) or (v) there shall exist a Defaulting Lender, Borrower shall immediately (in the case of clause (iii) above) or within one (1) Banking Day (in all other cases) following any request by the Agent or the Issuing Lender, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (ivv) above, after giving effect to Section 2.10(a)(4) and any Cash Collateral provided by the Defaulting Lender).

(b)    Grant of Security Interest. Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Agent, for the benefit of the Agent, the Issuing Lender and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to clause (c) below. If at any time the Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Agent or the Issuing Lender as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, Borrower will, promptly upon demand by the Agent, pay or provide to the Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender). All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in accounts with respect to which the Agent has a perfected security interest by control.

(c)    Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.11, Section 2.4, Section 2.5, Section 2.10 or Section 9.2 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other

 

75


obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be otherwise provided for herein.

(d)    Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall no longer be required to be held as Cash Collateral following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Agent and the Issuing Lender that there exists excess Cash Collateral; provided that, subject to this Section 2.11, the Person providing Cash Collateral and the Issuing Lender may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations and provided further that to the extent that such Cash Collateral was provided by Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

Section 2.12    2.12 Request for Extended Facilities. Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by Borrower to all Lenders of New Term Loans with a like Maturity Date (as specified in the applicable New Term Facility Supplement therefor) or all Lenders with Revolving Commitments with a like Maturity Date, in each case on a pro rata basis (based on the Outstanding Amount of the respective Loans or the aggregate amount of the Commitments, as the case may be, with the same Maturity Date) and on the same terms to each such Lender, Borrower may from time to time offer (but no Lender is obligated to accept such offer) to extend the maturity date, increase the interest rate or fees payable in respect of such Loans and/or Commitments (and related outstandings) and/or modify the amortization schedule in respect of such Lender’s New Term Loans for any New Term Loans (each, an “Extension”, and each group of Loans or Commitments, as applicable, in each case as so extended, as well as the original Loans and Commitments (in each case not so extended), being a tranche; any Extended Term Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which they were converted, and any Extended Revolving Commitments shall constitute a separate tranche of Revolving Commitments from the tranche of Revolving Commitments from which they were converted), all as set forth in greater detail in an Extended Facility Agreement so long as the terms set forth below are satisfied:

(i)    (A) no Default or Event of Default shall have occurred and be continuing at the time an Extension Offer is delivered to the Lenders or at the time of the Extended Facility Closing Date and (B) except for (I) representations and warranties which expressly speak as of a particular date or are no longer true and correct as a result of a change which is permitted by this Agreement or (II) as disclosed by Borrower and approved in writing by the Requisite Lenders, the representations and warranties contained in Article 4 (other than Sections 4.6 (with respect to the last sentence only) and 4.17) shall be true and correct in all material respects on and as of the date of the Extended Facility Closing Date as though made on that date;

(ii)    except as to interest rates, fees and final maturity, the Revolving Commitment of any Lender (an “Extending Revolving Lender”) extended pursuant to an Extension (an “Extended Revolving Commitment”), and the related outstandings, shall be a Revolving Commitment (or related Revolving Loan outstandings, as the case may be) with the same terms as the original Revolving Commitments (and related Revolving Loan

 

76


outstandings); provided that (x) subject to the provisions of Sections 2.4(l) and 2.9(d) to the extent dealing with Letters of Credit and Swing Line Advances which mature or expire after a Maturity Date when there exist Extended Revolving Commitments with a longer Maturity Date, all Letters of Credit and Swing Line Advances shall be participated in on a pro rata basis by all Lenders with Revolving Commitments in accordance with their Pro Rata Share of the aggregate Revolving Commitment (and except as provided in Sections 2.4(l) and 2.9(d), without giving effect to changes thereto on an earlier Maturity Date with respect to Swing Line Advances and Letters of Credit theretofore incurred or issued) and all borrowings under Revolving Commitments and repayments thereunder shall be made on a pro rata basis (except for (A) payments of interest and fees at different rates on Extended Revolving Commitments (and related outstandings) and (B) repayments required upon the Maturity Date for the non-extending Revolving Commitments) and (y) at no time shall there be Revolving Commitments hereunder (including Extended Revolving Commitments and any original Revolving Commitments) which have more than five (5) different Maturity Dates;

(iii)    except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments, the Term Loans of any Term Loan Lender (an “Extending Term Loan Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms as the tranche of Term Loans subject to such Extension Offer;

(iv)    the final maturity date for any Extended Term Loans shall be no earlier than the then latest Maturity Date hereunder or under any existing Extended Facility Agreement and the amortization schedule applicable to such Extended Term Loans for periods prior to the Maturity Date of the Term Loans extended thereby may not be increased from any then-existing amortization schedule applicable to Term Loans;

(v)    the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby;

(vi)    any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extended Facility Agreement;

(vii)    if the aggregate principal amount of applicable Term Loans (calculated on the face amount thereof) or Revolving Commitments, as the case may be, in respect of which applicable Term Loan Lenders or Revolving Lenders, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of applicable Term Loans or Revolving Commitments, as the case may be, offered to be extended by Borrower pursuant to such Extension Offer, then the applicable New Term Loans or Revolving Loans, as the case may be, of the applicable Term Loan Lenders or Revolving Lenders, as the case may be, shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed

 

77


actual holdings of record) with respect to which such Term Loan Lenders or Revolving Lenders, as the case may be, have accepted such Extension Offer;

(viii)    all documentation in respect of such Extension shall be consistent with the foregoing;

(ix)    any Extended Facility requested by Borrower shall be in a minimum amount of $20,000,000; and

(x)    the Agent and the lenders party thereto shall enter into an Extended Revolving Credit Facility Agreement or an Extended Term Facility Agreement, as the case may be, and satisfy the conditions precedent set forth therein.

Subject to compliance with the terms of this Section 2.12, the Agent, the Issuing Lender and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 2.12 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Commitments on such terms as may be set forth in the relevant Extended Facility Agreement) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 3.10, 11.2, 11.10 or any other provisions regarding the sharing of payments) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.12. The Lenders hereto agree that the Extended Facility Lenders party to any Extended Facility Agreement may, from time to time, make amendments to such Extended Facility Agreement without the consent of any other Lenders so long as such Extended Facility Agreement, as amended, complies with the terms set forth in this Section 2.12.

Section 1.10     Alternate Rate of Interest.

(a)     If in connection with any request for a Term SOFR Loan or a conversion of Alternate Base Rate Loans to Term SOFR Loans or a continuation of Term SOFR Loans, as applicable, (i) the Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate has been determined in accordance with Section 2.13(b), and the circumstances under clause (i) of Section 2.13(b) or the Scheduled Unavailability Date has occurred, or (B) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Term SOFR Period with respect to a proposed Term SOFR Loan or in connection with an existing or proposed Alternate Base Rate Loan, or (ii) the Agent or the Requisite Lenders determine that for any reason that Term SOFR for any requested Term SOFR Period with respect to a proposed Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Agent will promptly so notify Borrower and each Lender.

Thereafter, (x) the obligation of the Lenders to make or maintain Term SOFR Loans, or to convert Alternate Base Rate Loans to Term SOFR Loans, shall be suspended (to the extent of the affected Term SOFR Loans or Term SOFR Period), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Alternate Base Rate, the utilization of the Term SOFR component in determining the Alternate Base Rate shall be suspended, in each case until the Agent (or, in

 

78


the case of a determination by the Requisite Lenders described in clause (ii) of this Section 2.13(a), until the Agent upon instruction of the Requisite Lenders) revokes such notice.

Upon receipt of such notice, (i) Borrower may revoke any pending request for a Borrowing of, or conversion to, or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Term SOFR Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Alternate Base Rate Loans in the amount specified therein and (ii) any outstanding Term SOFR Loans shall be deemed to have been converted to Alternate Base Rate Loans immediately at the end of their respective applicable Term SOFR Period.

(b)    Replacement of Term SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Agent determines (which determination shall be conclusive absent manifest error), or Borrower or Requisite Lenders notify the Agent (with, in the case of the Requisite Lenders, a copy to Borrower) that Borrower or Requisite Lenders (as applicable) have determined, that:

(i)    adequate and reasonable means do not exist for ascertaining one month, three month and six month interest periods of Term SOFR, including, without limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or

(ii)     CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Agency having jurisdiction over the Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease; provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”);

then, on a date and time determined by the Agent and Borrower (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of a Term SOFR Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR for any payment period for interest calculated that can be determined by the Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate”).

 

79


If the Successor Rate is Daily Simple SOFR, all interest payments will be payable on a monthly basis.

Notwithstanding anything to the contrary herein, (i) if the Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 2.13(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then in each case, the Agent and Borrower may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 2.13 at the end of any Term SOFR Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such alternative benchmark and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth Banking Day after the Agent shall have posted such proposed amendment to all Lenders and Borrower unless, prior to such time, Lenders comprising the Requisite Lenders have delivered to the Agent written notice that such Requisite Lenders object to such amendment.

The Agent will promptly (in one or more notices) notify Borrower and each Lender of the implementation of any Successor Rate.

Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Agent (in consultation with Borrower).

Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than 0%, the Successor Rate will be deemed to be 0% for the purposes of this Agreement and the other Loan Documents.

In connection with the implementation of a Successor Rate, the Agent (in consultation with Borrower) will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Agent shall post each such amendment implementing such Conforming Changes to Borrower and the Lenders reasonably promptly after such amendment becomes effective.

 

80


ARTICLE 2

PAYMENTS AND FEES

Section 3.1    3.1 Principal and Interest..

(a)    Interest shall be payable on the outstanding daily unpaid principal amount of each Advance from the date thereof until payment in full is made and shall accrue and be payable at the rates set forth or provided for herein before and after Default, before and after maturity, before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law, with interest on overdue interest at the Default Rate to the fullest extent permitted by applicable Laws.

(b)    Interest accrued on each Alternate Base Rate Loan shall be due and payable on each Quarterly Payment Date; provided that all accrued and unpaid interest on any Swing Line Advance refunded pursuant to Section 2.9(c), shall be due and payable in full on the date such Advance is refunded or converted. Except as otherwise provided in Sections 3.1(d) and 3.7, the unpaid principal amount of any Alternate Base Rate Loan shall bear interest at a fluctuating rate per annum equal to the Alternate Base Rate plus the Applicable Margin. Each change in the interest rate under this Section 3.1(b) due to a change in the Alternate Base Rate shall take effect simultaneously with the corresponding change in the Alternate Base Rate.

(c)    Interest accrued on each Eurodollar RateTerm SOFR Loan shall be due and payable on the last day of the related EurodollarTerm SOFR Period; provided, however, that if any EurodollarTerm SOFR Period exceeds three (3) months, interest shall be paid on the respective dates that fall every three (3) months after the beginning of such EurodollarTerm SOFR Period. Except as otherwise provided in Sections 3.1(d) and 3.7, the unpaid principal amount of any Eurodollar RateTerm SOFR Loan shall bear interest at a rate per annum equal to the Eurodollar RateTerm SOFR for that Eurodollar RateTerm SOFR Loan plus the Applicable Margin.

(d)    During the existence of an Event of Default, the Loans shall bear interest at a rate per annum equal to the sum of (i) the interest rate specified in Section 3.1(b) or 3.1(c). whichever is applicable, plus (ii) two (2) percentage points (the “Default Rate”).

(e)    If not sooner paid, the aggregate principal amount of all Loans and Swing Line Advances outstanding shall be payable as follows:

(i)    the amount, if any, by which the sum of (a) the Outstanding Amount of all Revolving Loans plus (b) the Outstanding Amount of the Swing Line Advances plus (c) the Outstanding Amount of all L/C Obligations at any time exceeds the then applicable Revolving Commitment shall be payable immediately;

(ii)    the aggregate Outstanding Amount under all Revolving Loans and all Swing Line Advances shall in any event be payable on the applicable Revolving Loan Maturity Date;

 

81


(iii)    any New Term Loans shall be payable in the installments and on the Maturity Date set forth in the applicable New Term Facility Supplement pursuant to which such Loans were made; and

(iv)    any Loans subject to an Extended Facility Agreement shall be payable in the installments and on the Maturity Date set forth in the applicable Extended Facility Agreement pursuant to which such Loans were made.

(f)    Outstanding Loans and Advances may, at any time and from time to time, voluntarily be paid or prepaid in whole or in part without premium or penalty, except that with respect to any voluntary prepayment under this Subsection, (i) any partial prepayment of a Loan (other than a Swing Line Advance) shall be not less than $500,000 and shall be an integral multiple of $100,000 unless the entire outstanding amount of such Loan is being prepaid, (ii) unless the Swing Line Lender otherwise consents, any partial prepayment of a Swing Line Advance shall be not less than $250,000 and shall be in an integral multiple of $250,000, (iii) the Agent shall have received written notice of any prepayment by 9:00 a.m. on the date that is one (1) Banking Day before the date of prepayment (which must be a Banking Day) in the case of an Alternate Base Rate Loan, and, in the case of a Eurodollar RateTerm SOFR Loan, three (3) Banking Days before the date of prepayment, which notice shall identify the date and amount of the prepayment and the Loan(s) being prepaid, (iv) each prepayment of principal on any Eurodollar RateTerm SOFR Loan shall be accompanied by payment of interest accrued to the date of payment on the amount of principal paid, and (v) any payment or prepayment of all or any part of any Eurodollar RateTerm SOFR Loan on a day other than the last day of the applicable EurodollarTerm SOFR Period shall be subject to Section 3.6(ed).

Section 3.2    3.2 Closing Date Fees. On the Closing Date, Borrower shall pay each of the following fees:

(a)    to the Agent, for the account of each Lender, a one-time upfront fee, based upon each Lender’s Pro Rata Share of the Revolving Commitment on the Closing Date, as set forth in a separate agreement among Borrower and the Arrangers; provided that any such fees payable for the account of Bank of America, National Association, shall be paid directly to Bank of America, National Association; and

(b)    to the Agent, for the sole account of the Agent, such fees as are set forth in the Agent Fee Letter.

Section 3.3    Commitment FeeCommitment Fee. From the Closing Date through the applicable Revolving Loan Maturity Date for each Revolving Lender, Borrower shall pay to the Agent, for the ratable accounts of the Revolving Lenders pro rata according to their Pro Rata Share of the Revolving Commitment, a commitment fee equal to the Applicable Margin times the average daily amount by which the Revolving Commitment exceeds an amount equal to the sum of (i) aggregate daily outstanding principal amount of all Revolving Loans plus (ii) the Outstanding Amount of all L/C Obligations, subject to adjustment as provided in Section 2.10. The commitment fee shall be payable quarterly in arrears as of each Quarterly Payment Date within ten (10) days after receipt by Borrower of an invoice therefor from the Agent.

 

82


Section 3.4    3.4 Letter of Credit Fees. With respect to each Letter of Credit, Borrower shall pay the following fees (subject to Section 2.10):

(a)    with respect to the issuance of each Standby Letter of Credit, (x) to the Agent, for the benefit of the Issuing Lender, an issuance fee of 0.125% of the face amount of such Standby Letter of Credit; and (y) for each day during each Pricing Period that a Letter of Credit is outstanding, to the Agent, for the Revolving Lenders ratably, in accordance with their respective Pro Rata Shares of the Revolving Commitment, a standby letter of credit fee in an amount equal to the Applicable Margin for Eurodollar RateTerm SOFR Loans times the face amount of such Standby Letter of Credit;

(b)    with respect to the issuance of each Commercial Letter of Credit, to the Agent a commercial letter of credit issuance fee in the amount set forth from time to time as the Issuing Lender’s published scheduled fee for the issuance of commercial letters of credit, which fee the Agent shall promptly pay to the Revolving Lenders ratably, in accordance with their respective Pro Rata Shares of the Revolving Commitment; and

(c)    concurrently with each negotiation, drawing or amendment of each Commercial Letter of Credit, to the Issuing Lender for the sole account of the Issuing Lender, negotiation, drawing and amendment fees in the amounts set forth from time to time as the Issuing Lender’s published scheduled fees for such services.

Each of the fees payable with respect to Letters of Credit under this Section is earned when due and is nonrefundable and, with respect to Sections 3.4(a) and (b), shall be payable quarterly in arrears.

Section 3.5    3.5 Increased Commitment Costs. If any Lender or Issuing Lender shall determine in good faith that any Change in Law, or compliance by such Lender or Issuing Lender (or its Lending Office) or any holding company controlling such Lender or Issuing Lender, with any request, guideline or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Law) of any central bank or Governmental Agency not imposed as a result of such Lender’s, such Issuing Lender’s or such holding company’s failure to comply with any other Laws, affects or would affect the amount of capital required or expected to be maintained by such Lender, such Issuing Lender or any holding company controlling such Lender or Issuing Lender and determines in good faith (taking into consideration such Lender’s, such Issuing Lender’s or such holding company’s policies with respect to capital adequacy or liquidity requirements and such Lender’s or such Issuing Lender’s desired return on capital) that the amount of such capital is increased, or the rate of return on capital is reduced, as a consequence of its obligations under this Agreement, then, within five (5) Banking Days after demand of such Lender or such Issuing Lender, Borrower shall pay to such Lender or such Issuing Lender, from time to time as specified in good faith by such Lender or such Issuing Lender, additional amounts sufficient to compensate such Lender or such Issuing Lender in light of such circumstances, to the extent reasonably allocable to such obligations under this Agreement, provided that Borrower shall not be obligated to pay any such amount unless such Lender or such Issuing Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days

 

83


preceding the date of such demand (except to the extent of any retroactive application of the Change in Law giving rise to such demand). If a Lender or Issuing Lender requests compensation pursuant to this Section 3.5, Borrower may replace such Lender or such Issuing Lender in accordance with Section 11.26. If any Lender requests compensation pursuant to this Section, such Lender agrees to designate a different Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.

Section  3.6    3.6 EurodollarTerm SOFR Costs and Related Matters.In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, Borrower shall pay that Lender within five (5) Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand)). The Lender’s determination of such amount shall be conclusive in the absence of manifest error.

.

(a)     [Reserved].

(b)    If any Change in Law:

(1)     (1)     shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar RateTerm SOFR Advance, any Eurodollar RateTerm SOFR Loans, or its obligation to make Eurodollar RateTerm SOFR Advances, as applicable, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar RateTerm SOFR Advance or any other amounts due under this Agreement in respect of any Eurodollar RateTerm SOFR Advance, any Eurodollar RateTerm SOFR Loans or its obligation to make Eurodollar RateTerm SOFR Advances, as applicable, excluding, in each case, (i) any Indemnified Taxes (as to which Section 3.11 shall govern exclusively), and (ii) any Taxes described in clause (a), (c) or (d) of the definition of “Excluded Taxes”;

(2)     (2)     shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, compulsory loan, insurance charge, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or; or

(3)     (3)     shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar RateTerm SOFR Advance, any Eurodollar RateTerm SOFR Loans, its obligation to

 

84


make Eurodollar RateTerm SOFR Advances or this Agreement, or shall otherwise affect any of the same;

and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar RateTerm SOFR Advance (or in respect of any Eurodollar RateTerm SOFR Advance, any Eurodollar RateTerm SOFR Loans) or its obligation to make Eurodollar RateTerm SOFR Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar RateTerm SOFR Advance, any Eurodollar RateTerm SOFR Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar Market),Term SOFR Advances then, within five (5) Banking Days after demand by such Lender (with a copy to the Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand). A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error. If a Lender requests compensation pursuant to this Section 3.6(b), Borrower may replace such Lender or such Issuing Lender in accordance with Section 11.26.

(c)    If, after the date hereof, any Lender shall, in its good faith opinion, determine that any Law has made it unlawful or impossible (or that any Governmental Agency has asserted that it is unlawful) for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar RateTerm SOFR Loan or to determine or charge interest rates based upon the Eurodollar RateTerm SOFR, or any Law or Governmental Agency has materially restricted the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Marketapplicable interbank market, and such Lender shall so notify the Agent, then (A) such Lender’s obligation to make or continue Eurodollar RateTerm SOFR Advances shall be suspended and (B) if such notice asserts the illegality of such Lender making or maintaining Alternate Base Rate Advances the interest rate on which is determined by reference to the Eurodollar RateTerm SOFR component of the Alternate Base Rate, the interest rate on which Alternate Base Rate Advances of such Lender, shall, if necessary to avoid such illegality, be determined by the Agent without reference to the Eurodollar RateTerm SOFR component of the Alternate Base Rate, in each case for the duration of such illegality or impossibility, and the Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, (I) the outstanding principal amount of such Lender’s Eurodollar RateTerm SOFR Advances, as applicable, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances (the interest rate on which Alternate Base Rate Advances of such Lender shall, if necessary to avoid such illegality, be determined by the Agent without reference to the Eurodollar RateTerm SOFR component of the Alternate Base Rate) on either (1) the last day of the EurodollarTerm SOFR Period(s) applicable to such Eurodollar RateTerm SOFR

 

85


Advances if such Lender may lawfully continue to maintain and fund such Eurodollar RateTerm SOFR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar RateTerm SOFR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e) and (II) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar RateTerm SOFR, the Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Eurodollar RateTerm SOFR component thereof until the Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar RateTerm SOFR. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Agent under this Section, and agrees to designate a different Eurodollar Lending Office iflending office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar RateTerm SOFR Loan, such Lender shall fund such amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. If a Lender provides a notice pursuant to this Section 3.6(c), Borrower may replace such Lender or such Issuing Lender in accordance with Section 11.26. Any Lender whose obligation to make Eurodollar RateTerm SOFR Advances has been suspended under this Section shall thereafter promptly notify the Agent and Borrower of any cessation of the Special Eurodollar Circumstancecircumstance which gave rise to such suspension.

(d)    In the event of (a) the payment of any principal of any Term SOFR Loan other than on the last day of the Term SOFR Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Term SOFR Loan other than on the last day of the Term SOFR Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Term Loan on the date specified in any Request for Loan delivered pursuant hereto (regardless of whether such notice is revoked in accordance therewith) or (d) the assignment of any Term SOFR Loan other than on the last day of the Term SOFR Period applicable thereto as a result of a request by Borrower pursuant to Section 3.6(e) or Section 11.26, then, in any such event, Borrower shall, after receipt of a written request by any Lender affected by any such event (which request shall set forth in reasonable detail the basis for requesting such amount), compensate each Lender for the loss, cost and expense (excluding loss of profit) actually incurred by it as a result of such event. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 3.6(d) and the reasons therefor delivered to Borrower shall be prima facie evidence of such amounts. Borrower shall pay such Lender the amount shown as due on any such certificate within 15 days after receipt of such demand. Notwithstanding the foregoing, this Section 3.6(d) will not apply to losses, costs or expenses resulting from Taxes. Notwithstanding the foregoing, no Lender shall demand compensation pursuant to this Section 3.6(d) if it shall not at the time be the general policy or practice of such Lender to demand such compensation in similar circumstances under comparable provisions of other credit agreements.

 

86


(d) If, with respect to any proposed Eurodollar Rate Loan or a conversion to or continuation thereof:

(1)    the Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, (A) deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period or (B) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Eurodollar Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Alternate Base Rate Loan (in each case with respect to clause (A), “Impacted Loans”); or

(2)    the Requisite Lenders advise the Agent that the Eurodollar Rate as determined by the Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances;

then the Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, (x) the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended (to the extent of the affected Eurodollar Rate Loans or Eurodollar Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Alternate Base Rate, the utilization of the Eurodollar Rate component in determining the Alternate Base Rate shall be suspended, in each case until the Agent (upon the instruction of the Requisite Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Eurodollar Periods) or, failing that, will be deemed to have converted such request into a request for a borrowing of Alternate Base Rate Loans in the amount specified therein.

Notwithstanding the foregoing, if the Agent has made the determination described in clause (d)(1) of this Section, the Agent, in consultation with Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (i) the Agent revokes the notice delivered with respect to the Impacted Loans under this Section, (ii) the Requisite Lenders notify Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender determines that any Law has made it unlawful, or that any Governmental Agency 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 Agency has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Agent and Borrower written notice thereof.

(e) Upon conversion, payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c)) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a) to make an Advance) to

 

87


prepay, borrow, continue or convert on the date or in the amount specified for a Eurodollar Rate Loan in any Request for Loan after such Request for Loan has become irrevocable, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:

(1)    $250; plus

(2)    the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus

(3)    all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow.

Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.

(e)     (f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section. If any Lender requests compensation pursuant to clause (a) or clause (b) of this Section, or if any Lender gives a notice pursuant to clause (c) of this Section, such Lender agrees to designate a different Eurodollar Lending Officelending office if such designation will avoid the need for or reduce the amount of such compensation or would eliminate the need for the notice pursuant to clause (c) of this Section, as applicable, and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender. Borrower may replace such Lender by notifying such Lender, within five (5) Banking Days after demand of such Lender, of Borrower’s intention to replace such Lender and Borrower shall then replace such Lender by causing such Lender to assign its Commitments to one or more other then-existing Lenders or to another Eligible Assignee reasonably satisfactory to the Agent within forty-five (45) days after demand of such Lender.in accordance with Section 11.26.

Section 3.7    Late PaymentsLate Payments. If any installment of principal or interest or any fee or cost or other amount payable under any Loan Document to the Agent, the Issuing Lender or any Lender is not paid when due, it shall thereafter bear interest at the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including, without limitation, interest on past due interest) shall be compounded monthly, on the last day of each calendar month, to the fullest extent permitted by applicable Laws.

 

88


Section 3.8    3.8 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.

(a)    Computation of Interest and Fees. All computations of interest for Alternate Base Rate Loans (including Alternate Base Rate Loans determined by reference to the Eurodollar RateTerm SOFR) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made; interest shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid. Any Loan that is repaid on the same day on which it is made shall bear interest for one day. Notwithstanding anything in this Agreement to the contrary, interest in excess of the maximum amount permitted by applicable Laws shall not accrue or be payable hereunder or under the Notes, and any amount paid as interest hereunder or under the Notes which would otherwise be in excess of such maximum permitted amount shall instead be treated as a payment of principal.

(b)    Financial Statement Adjustments or Restatements. If, as a result of any restatement of or other adjustment to the financial statements of Borrower and its Restricted Subsidiaries or for any other reason, Borrower, or the Lenders determine that (i) the Total Leverage Ratio as calculated by Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such period, Borrower shall immediately and retroactively be obligated to pay to the Agent for the account of the applicable Lenders or the Issuing Lender, as the case may be, promptly on demand by the Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Agent, any Lender or the Issuing Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Agent, any Lender or the Issuing Lender, as the case may be, under any other provision of this Agreement to payment of any Secured Obligations hereunder at the Default Rate. Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Secured Obligations hereunder.

Section 3.9     Non-Banking DaysNon-Banking Days. If any payment to be made by Borrower or any other Loan Party under any Loan Document shall come due on a day other than a Banking Day, payment shall instead be considered due on the next succeeding Banking Day and the extension of time shall be reflected in computing interest and fees.

Section  3.10    3.10 Manner and Treatment of Payments..

(a)    All payments to be made by Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Each payment hereunder (except as otherwise expressly provided herein) or on the Notes or under any other Loan Document shall be made to the Agent at the Agent’s Office in Dollars for the account of each of the Lenders or the Agent, as the case may be, in immediately available funds not later than 11:00 a.m. on the day of payment (which must be a Banking Day). All payments received after such

 

89


time, on any Banking Day, shall be deemed received on the next succeeding Banking Day. The amount of all payments received by the Agent for the account of each Lender shall be promptly paid by the Agent to the applicable Lender in immediately available funds and, if such payment was received by the Agent by 11:00 a.m. on a Banking Day and not so made available to the account of a Lender on that Banking Day, the Agent shall reimburse that Lender for the cost to such Lender of funding the amount of such payment at the Federal Funds Rate. All payments shall be made in lawful money of the United States.

(b)    Except to the extent provided in Sections 3.5 and 3.6(fe ), each payment or prepayment on account of any Loan shall be applied pro rata according to the outstanding Advances made by each Lender comprising such Loan.

(c)    Each Lender shall use its best efforts to keep a record (in writing or by an electronic data entry system) of Advances made by it and payments received by it with respect to each of its Notes. Subject to Section 11.8(c), such record shall, as against Borrower, be presumptive evidence of the amounts owing. Notwithstanding the foregoing sentence, the failure by any Lender to keep such a record shall not affect Borrower’s obligation to pay the Obligations.

Section 3.11    3.11 Taxes..

(a)    Issuing Lender. For purposes of this Section 3.11, the term “Lender” includes any Issuing Lender.

(b)    Payments Free of Taxes. Any and all payments by or on account of any obligation of Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Agency in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c)    Payment of Other Taxes by Borrower. Borrower shall timely pay to the relevant Governmental Agency in accordance with applicable law, or at the option of the Agent timely reimburse it for the payment of, any Other Taxes.

(d)    Indemnification by Borrower. Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Agency. A certificate as to the amount of such payment or liability delivered to

 

90


Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e)    Indemnification by the Lenders. Each Lender shall severally indemnify the Agent within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that Borrower has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.8 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Agency. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this subsection (e).

(f)    Evidence of Payments. As soon as practicable after any payment of Taxes by Borrower to a Governmental Agency pursuant to this Section 3.11, Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Agency evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.

(g)    Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to Borrower and the Agent, at the time or times reasonably requested by Borrower or the Agent, such properly completed and executed documentation reasonably requested by Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or the Agent as will enable Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.11(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)    Without limiting the generality of the foregoing:

(A)    any Lender that is a U.S. Person shall deliver to Borrower and the Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Agent), executed originals of IRS Form W-9 (or successor form) certifying that such Lender is not subject to U.S. federal backup withholding tax;

 

91


(B)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and to the extent it is legally entitled to do so, from time to time thereafter upon the reasonable request of Borrower or the Agent), whichever of the following is applicable:

(i)     (i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E (or successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E (or successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii)     (ii) executed originals of IRS Form W-8ECI (or successor form);

(iii)    (iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit N-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E (or successor form);

(iv)     (iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or successor form), accompanied by IRS Form W-8ECI (or successor form), IRS Form W-8BEN or W-8BEN-E (or successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit N-2 or Exhibit N-3, IRS Form W-9 (or successor form), and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit N-4 on behalf of each such direct and indirect partner; or

(v)     (v) in all other cases, executed originals of IRS Form W-8BEN or W-8BEN-E (or successor form).

(C)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Agent),

 

92


executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or the Agent to determine the withholding or deduction required to be made; and

(D)    if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or the Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or the Agent as may be necessary for Borrower and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and the Agent in writing of its legal inability to do so.

The Agent shall be subject to this Section 3.11(g), and shall deliver to Borrower any required forms described above, as if it were a Lender.

(h)    Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.11 (including by the payment of additional amounts pursuant to this Section 3.11), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Agency with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Agency) in the event that such indemnified party is required to repay such refund to such Governmental Agency. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification

 

93


payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i)    Survival. Each party’s obligations under this Section 3.11 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all Obligations under any Loan Document.

(j)    Mitigation. If any Lender requires Borrower to pay any Indemnified Taxes or additional amounts to any Lender, the Issuing Lender, or any Governmental Agency for the account of any Lender or the Issuing Lender pursuant to this Section 3.11, such Lender or the Issuing Lender, as applicable, agrees (at the request of Borrower) to use reasonable efforts to designate a different Lending Office if such designation (1) would eliminate or reduce amounts payable pursuant to this Section 3.11, in the future and (2) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. If Borrower is required to pay any Indemnified Taxes or additional amounts pursuant to this Section 3.11, Borrower may replace such Lender or such Issuing Lender in accordance with Section 11.26.

Section 3.12     Funding SourcesFunding Sources. Nothing in this Agreement shall be deemed to obligate any Lender to obtain the funds for any Loan or Advance in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan or Advance in any particular place or manner.

Section 3.13    3.13 Failure to Charge Not Subsequent Waiver. Any decision by the Agent or any Lender not to require payment of any interest (including interest arising under Section 3.7) fee, cost or other amount payable under any Loan Document, or to calculate any amount payable by a particular method, on any occasion shall in no way limit or be deemed a waiver of the Agent’s or such Lender’s right to require full payment of any interest (including interest arising under Section 3.7), fee, cost or other amount payable under any Loan Document, or to calculate an amount payable by another method that is not inconsistent with this Agreement, on any other or subsequent occasion.

Section 3.14    3.14 Agents Right to Assume Payments Will be Made. Unless the Agent shall have been notified by Borrower prior to the date on which any payment to be made by Borrower hereunder is due that Borrower does not intend to remit such payment, the Agent may, in its discretion, assume that Borrower has remitted such payment when so due and the Agent may, in its discretion and in reliance upon such assumption, make available to each Lender on such payment date an amount equal to such Lender’s or Issuing Lender’s share of such assumed payment. If Borrower has not in fact remitted such payment to the Agent, each Lender or Issuing Lender, as the case may be, shall forthwith on demand repay to the Agent the amount of such assumed payment made available to such Lender or Issuing Lender, together with interest thereon in respect of each day from and including the date such amount was made available by the Agent to such Lender to the date such amount is repaid to the Agent at the Federal Funds Rate.

 

94


Section 3.15    3.15 Fee Determination Detail. The Agent, and any Lender, shall provide reasonable detail to Borrower regarding the manner in which the amount of any payment to the Agent and the Lenders, or that Lender, under Article 3 has been determined, concurrently with demand for such payment.

Section 3.16     SurvivabilitySurvivability . All of Borrower’s obligations under Sections 3.5 and 3.6 shall survive for the ninety (90) day period following the date on which the Commitments are terminated and all Loans hereunder are fully paid, and Borrower shall remain obligated thereunder for all claims under such Sections made by any Lender to Borrower prior to the expiration of such period to the extent provided in such Sections.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES

Borrower represents and warrants to the Lenders that:

Section 4.1    4.1 Existence and Qualification; Power; Compliance With Laws. Borrower is a corporation duly formed, validly existing and in good standing under the Laws of Delaware. Borrower is duly qualified or registered to transact business and is in good standing in California and each other jurisdiction in which the conduct of its business or the ownership or leasing of its Properties makes such qualification or registration necessary, except where the failure so to qualify or register and to be in good standing would not constitute a Material Adverse Effect. Borrower has all requisite power and authority to conduct its business and to own and lease its Properties, except where the failure to have such power and authority would not constitute a Material Adverse Effect. Borrower has the requisite corporate power and authority to execute and deliver each Loan Document to which it is a party and to perform its Obligations. The chief executive office of Borrower is located in California. Borrower is in compliance with all Laws and other legal requirements applicable to its business, has obtained all authorizations, consents, approvals, orders, licenses and permits from, and has accomplished all filings, registrations and qualifications with, or obtained exemptions from any of the foregoing from, any Governmental Agency that are necessary for the transaction of its business, except where the failure so to comply, obtain authorizations, consents, approvals, orders, licenses and permits or file, register, qualify or obtain exemptions does not constitute a Material Adverse Effect.

Section 4.2    4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations. The execution, delivery and performance by Borrower and the Subsidiary Guarantors (if any) of the Loan Documents to which it is a party have been duly authorized by all necessary corporate or limited liability company action, and do not and will not:

(a)    Require any consent or approval not heretofore obtained of any partner, director, stockholder, security holder or creditor of such Loan Party;

(b)    Violate or conflict with any provision of such Loan Party’s certificate of incorporation or bylaws or equivalent charter documents, as applicable;

 

95


(c)    Result in or require the creation or imposition of any Lien (other than pursuant to the Loan Documents) or Rights of Others (other than Permitted Encumbrances) upon or with respect to any Property now owned or leased or hereafter acquired by such Loan Party;

(d)    Violate any Requirement of Law applicable to such Loan Party in any respect that constitutes a Material Adverse Effect;

(e)    Result in a breach of or constitute a default under, or cause or permit the acceleration of any obligation owed under, any indenture or loan or credit agreement or any other Contractual Obligation to which such Loan Party is a party or by which such Loan Party or any of its Property is bound or affected in any respect that constitutes a Material Adverse Effect; and such Loan Party is not in violation of, or default under, any Requirement of Law or Contractual Obligation, or any indenture, loan or credit agreement described in Section 4.2(e), in any respect that constitutes a Material Adverse Effect.

Section 4.3    4.3 No Governmental Approvals Required. Except as previously obtained or made and as provided in Section 9.2(e), no authorization, consent, approval, order, license or permit from, or filing, registration or qualification with, any Governmental Agency is or will be required to authorize or permit under applicable Laws the execution, delivery and performance by Borrower or any Subsidiary Guarantor of the Loan Documents to which it is a party (except where the failure to do so does not constitute a Material Adverse Effect).

Section  4.4    4.4 Subsidiaries..

(a)    Schedule 4.4 hereto correctly sets forth the names, form of legal entity, number of shares of capital stock issued and outstanding (where applicable), number of capital shares owned by Borrower or a Restricted Subsidiary of Borrower (specifying such owner) (where applicable) and jurisdictions of organization of all Restricted Subsidiaries of Borrower as of the Second Amendment Effective Date and specifies which (if any) thereof as of the Second Amendment Effective Date is a Significant Subsidiary and specifies which (if any) Subsidiaries of Borrower as of the Second Amendment Effective Date are Unrestricted Subsidiaries. As of the Second Amendment Effective Date, except as described in Schedule 4.4, Borrower does not own any Equity Interest or debt security which is convertible, or exchangeable, for Equity Interest in any Person. As of the Second Amendment Effective Date, unless otherwise indicated in Schedule 4.4, all of the outstanding Equity Interests of each Restricted Subsidiary are owned of record and beneficially by Borrower, there are no outstanding options, warrants or other rights to purchase Equity Interests of any such Restricted Subsidiary, and all issued and outstanding Equity Interests that are so owned are duly authorized, validly issued, fully paid and non-assessable, and were issued in compliance with all applicable state and federal securities and other Laws, and are free and clear of all Liens, except for Liens permitted under Section 6.9.

(b)    Each Restricted Subsidiary listed in Schedule 4.4 is a legal entity of the type described in Schedule 4.4 duly formed, validly existing and (where applicable) in good standing under the Laws of its jurisdiction of organization, is duly qualified to do business as a foreign organization and is in good standing as such in each jurisdiction in which the conduct of its business or the ownership or leasing of its Properties makes such qualification necessary (except, in each case, where the failure to be so duly qualified and in good standing does not constitute a

 

96


Material Adverse Effect), and has all requisite power and authority to conduct its business and to own and lease its Properties (except where the failure to have such power and authority would not constitute a Material Adverse Effect).

(c)    Each Restricted Subsidiary is in compliance with all Laws and other requirements applicable to its business and has obtained all authorizations, consents, approvals, orders, licenses, and permits from, and each such Restricted Subsidiary has accomplished all filings, registrations, and qualifications with, or obtained exemptions from any of the foregoing from, any Governmental Agency that are necessary for the transaction of its business, except where the failure to be in such compliance, obtain such authorizations, consents, approvals, orders, licenses, and permits, accomplish such filings, registrations, and qualifications, or obtain such exemptions, does not constitute a Material Adverse Effect.

Section 4.5     Financial StatementsFinancial Statements. Borrower has furnished to the Lenders (a) the audited consolidated financial statements of Borrower for the Fiscal Year ended March 2931, 20132023, and (b) the unaudited consolidated financial statements of Borrower for the Fiscal Quarter ended October 4June 30, 20132023. The financial statements described in the preceding sentence fairly present in all material respects the consolidated financial condition and results of operations of Borrower as of such dates and for such periods in conformity in all material respects with GAAP consistently applied, subject, in the case of unaudited financial statements only, to normal year-end accruals and audit adjustments and the absence of footnotes.

Section 4.6    4.6 No Other Liabilities; No Material Adverse Changes. As of the ClosingSeventh Amendment Effective Date, Borrower and its Restricted Subsidiaries do not have any material liability or material contingent liability required under GAAP to be reflected or disclosed, and not reflected or disclosed, in the balance sheet described in Section 4.5(b), other than liabilities and contingent liabilities arising in the ordinary course of business since the date of such financial statements. No circumstance or event has occurred that has had, or would reasonably be expected to have, a Material Adverse Effect since March 31, 20182023 .

Section  4.7    4.7 Intentionally Deleted..

Section 4.8     Intangible AssetsIntangible Assets. Borrower and its Restricted Subsidiaries own, or possess the right to use to the extent necessary in their respective businesses, all material trademarks, trade names, copyrights, patents, patent rights, computer software, licenses and other Intangible Assets that are used in the conduct of their businesses as now operated, and no such Intangible Asset, to the best knowledge of Borrower, conflicts with the valid trademark, trade name, copyright, patent, patent right or Intangible Asset of any other Person to the extent that such conflict constitutes a Material Adverse Effect. Except as set forth in Schedule 4.8, Borrower has not used any trade name, trade style or “dba” during the five year period ending on the Closing Date.

Section 4.9     Use of ProceedsUse of Proceeds. The proceeds of the Loans are intended to be and shall be used solely for the purposes set forth in and permitted by Section 5.9 and not in violation of this Agreement.

 

97


Section 4.10    LitigationLitigation . Except for (a) any matter fully covered as to subject matter and amount (subject to applicable deductibles and retentions) by insurance for which the insurance carrier has not asserted lack of subject matter coverage or reserved its right to do so, (b) any matter, or series of related matters, involving a claim against Borrower or any of its Restricted Subsidiaries of less than $25,000,000, (c) matters of an administrative nature not involving a claim or charge against Borrower or any of its Restricted Subsidiaries and (d) matters set forth in Schedule 4.10, there are no actions, suits, proceedings or investigations pending as to which Borrower or any of its Restricted Subsidiaries have been served or have received notice against or affecting Borrower or any of its Restricted Subsidiaries or any Property of any of them before any Governmental Agency which could reasonably be expected to have a Material Adverse Effect.

Section 4.11    Binding ObligationsBinding Obligations. Each of the Loan Documents to which Borrower and any Subsidiary Guarantor is a party will, when executed and delivered by such Loan Party, constitute the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as enforcement may be limited by Debtor Relief Laws or equitable principles relating to the granting of specific performance and other equitable remedies as a matter of judicial discretion.

Section 4.12    Affected Financial InstitutionsEEA Financial Institutions. No Loan Party is an EEAAffected Financial Institution.

Section 4.13    4.13 ERISA..

(a)     Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan sponsored by a Loan Party is in compliance with the applicable provisions of ERISA, the Code and other federal or state laws.

(b)    Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, (i) with respect to any Multiemployer Plan with respect to which a Loan Party is directly obligated to contribute or Plan sponsored by a Loan Party, no ERISA Event has occurred during the six year period prior to the date on which this representation is made or deemed made or is reasonably expected to occur, (ii) with respect to any Multiemployer Plan with respect to which any ERISA Affiliate (other than a Loan Party) is directly obligated to contribute or any Plan (other than any Plan sponsored by a Loan Party), to the knowledge of and the Borrower no ERISA Event has occurred during the six year period prior to the date on which this representation is made or deemed made or is reasonably expected to occur, and (iii) neither any Loan Party nor, to the knowledge of the Borrower, any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA.

(c)     Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, (i) each employee benefit plan (as defined in Section 3(2) of ERISA) sponsored by a Loan Party that is intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service to the effect that the form

 

98


of such plan is qualified under Section 401(a) of the Code or is in the form of a prototype or volume submitter plan that has received a favorable opinion letter, in each case from the Internal Revenue Service as to such plan’s qualified status, or an application for such a letter is currently being processed by the Internal Revenue Service, (ii) to the knowledge of the Borrower, no fact or event has occurred that could reasonably be expected to adversely affect the qualified status of any such employee benefit plan, and (iii) there are no pending or, to the knowledge of the Borrower, threatened (in writing) claims, actions or lawsuits, or action by any Governmental Agency, with respect to any such plan.

(a) With respect to each Pension Plan:

(i) such Pension Plan complies in all material respects with ERISA and any other applicable Laws to the extent that noncompliance constitutes a Material Adverse Effect;

(ii) such Pension Plan has not incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA) that constitutes a Material Adverse Effect;

(iii) no “reportable event” (as defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) has occurred that constitutes a Material Adverse Effect; and

(iv) neither Borrower nor any of its Restricted Subsidiaries has engaged in any non-exempt “prohibited transaction” (as defined in Section 4975 of the Code) that constitutes a Material Adverse Effect.

(b) Neither Borrower nor any of its Restricted Subsidiaries has incurred or expects to incur any withdrawal liability to any Multiemployer Plan that constitutes a Material Adverse Effect.

Section 4.14    4.14 Regulation U; Investment Company Act. No part of the proceeds of any Loan hereunder will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or carrying, any Margin Stock in violation of Regulation U. Neither Borrower nor any of its Restricted Subsidiaries is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

Section 4.15    DisclosureDisclosure . No written agreement, documents, certificates, written statements or other correspondence made or executed by a Senior Officer and delivered, provided or otherwise made available to the Agent, the Issuing Lender or any Lender in connection with this Agreement, or in connection with any Loan, as of the date thereof contained any untrue statement of a material fact or omitted a material fact necessary to make the statement made not misleading in light of the circumstances existing at the date the statement was made; it being understood and agreed that this representation and warranty shall not apply to any Projections, pro forma financial information, forecasts or forecast assumptions delivered, provided or otherwise made available to the Agent or any Lender. As of the FourthSeventh Amendment Effective Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.

 

99


Section 4.16    Tax LiabilityTax Liability. Borrower and its Restricted Subsidiaries have filed all federal and state income tax returns and any other material tax returns which are required to be filed, and have paid, or made provision for the payment of, all taxes with respect to the periods, Property or transactions covered by said returns, or pursuant to any assessment received by Borrower or any of its Restricted Subsidiaries, except (a) such taxes, if any, as are being contested in good faith by appropriate proceedings and as to which adequate reserves have been established and maintained and (b) immaterial taxes so long as no material Property of Borrower or any of its Restricted Subsidiaries is at impending risk of being seized, levied upon or forfeited as a result of the non-payment thereof.

Section 4.17     ProjectionsProjections . As of the Closing Date, to the best knowledge of Borrower, the assumptions set forth in the Projections are reasonable and consistent with each other and with all facts known to Borrower, and the Projections are reasonably based on such assumptions. Nothing in this Section 4.17 shall be construed as a representation or covenant that the Projections in fact will be achieved.

Section 4.18     Hazardous MaterialsHazardous Materials. Except as described in Schedule 4.18, (a) neither Borrower nor any of its Restricted Subsidiaries at any time has disposed of, discharged, released or threatened the release of any Hazardous Materials on, from or under the Real Property in violation of any Hazardous Materials Law that would individually or in the aggregate constitute a Material Adverse Effect, (b) to the best knowledge of Borrower, no condition exists that violates any Hazardous Materials Law affecting any Real Property except for such violations that would not individually or in the aggregate constitute a Material Adverse Effect, (c) no Real Property or any portion thereof is or has been utilized by Borrower or any of its Restricted Subsidiaries as a site for the manufacture of any Hazardous Materials in violation of any Hazardous Materials Law and (d) to the extent that any Hazardous Materials are used, generated or stored by Borrower or any of its Restricted Subsidiaries on any Real Property, or transported to or from such Real Property by Borrower or any of its Restricted Subsidiaries, such use, generation, storage and transportation are in compliance with all Hazardous Materials Laws except for such non-compliance that would not constitute a Material Adverse Effect or be materially adverse to the interests of the Lenders.

Section 4.19     Security InterestsSecurity Interests. Except as otherwise provided in the Security Agreements and subject to Section 9.2(e), (a) each Security Agreement will create a valid first priority security interest in the Collateral described therein securing the Secured Obligations (subject only to Liens permitted by Section 6.9 and to such qualifications and exceptions as are contained in the Uniform Commercial Code with respect to the priority of security interests perfected by means other than the filing of a financing statement or with respect to the creation of security interests in Property to which Division 9 of the Uniform Commercial Code does not apply), and (b) all actions necessary to perfect the security interests so created have been taken and completed, other than any filings and recordings to be made as of the Closing Date (and upon the making of such filings and recordation the security interests so created shall be perfected).

Section 4.20     SolvencySolvency . After giving effect to this Agreement and the other Loan Documents (including after giving effect to the initial Advances under this Agreement), Borrower will be Solvent.

 

100


Section 4.21    4.21 Anti-Corruption Laws, AML Laws and Sanctions. Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance in all material respects by Borrower, its Subsidiaries and their respective directors, officers, employees and agents with AML Laws, Anti-Corruption Laws and applicable Sanctions, and Borrower, its Subsidiaries and their respective officers and directors and to the knowledge of Borrower its employees and agents, are in compliance with AML Laws, Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in Borrower being designated as a Sanctioned Person. None of (a) Borrower, any Subsidiary or to the knowledge of Borrower or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of Borrower, any agent of Borrower or any Subsidiary that will act in direct connection with the credit facility established hereby, is a Sanctioned Person. No Advance or Letter of Credit, use of proceeds or other transaction contemplated by this Agreement will violate any AML Laws, Anti-Corruption Law or applicable Sanctions.

Section 4.22     Patriot ActPatriot Act. Borrower is in compliance in all material respects with the disclosure requirements set forth in Section 11.24.

Section 4.23     Communications LicensesCommunications Licenses. The list on Schedule 4.23 includes all material Communications Licenses that are held by Borrower and its Restricted Subsidiaries and are necessary for the provision of their consumer satellite broadband service in the United States as of the Closing Date. Other than as specifically set forth on Schedule 4.23, Borrower and its Restricted Subsidiaries hold all Communications Licenses that they are required to hold for the provision of their consumer broadband service in the United States as of the Closing Date, except for any Communications Licenses the failure of which to be so held would not reasonably be expected to have a Material Adverse Effect. Each Communications License listed on Schedule 4.23 is in full force and effect, and neither Borrower nor any such Restricted Subsidiary has received any written notice of proceedings relating to the revocation or adverse modification of any such Communications License listed on Schedule 4.23, except in either case for matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No event has occurred that, after notice or lapse of time, would reasonably be expected to allow the revocation or adverse modification of any Communications License listed on Schedule 4.23, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Borrower and its Restricted Subsidiaries have entered into all international frequency coordination agreements necessary to operate the ViaSat-1 Satellite as currently operated, except to the extent the failure to enter into such agreements, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

ARTICLE 5

AFFIRMATIVE COVENANTS

(OTHER THAN INFORMATION AND REPORTING

REQUIREMENTS)

So long as any Advance remains unpaid, or any other Obligation remains unpaid (other than contingent indemnification obligations for which no claim has been made), or any portion of

 

101


any Commitment remains in force or any Letter of Credit is outstanding, Borrower shall, and shall cause its Restricted Subsidiaries to:

Section 5.1    5.1 Payment of Taxes and Other Potential Liens. Pay and discharge promptly all taxes, assessments and governmental charges or levies imposed upon any of them, upon their respective Property or any part thereof and upon their respective income or profits or any part thereof, except that Borrower and its Restricted Subsidiaries shall not be required to pay or cause to be paid (a) any tax, assessment, charge or levy that is not yet past due, or is being contested in good faith by appropriate proceedings so long as the relevant entity has established and maintains adequate reserves for the payment of the same or (b) any immaterial tax, assessment, charge or levy so long as no material Property of Borrower or any of its Restricted Subsidiaries is at impending risk of being seized, levied upon or forfeited as a result of the non-payment thereof.

Section 5.2    5.2 Preservation of Existence. Preserve and maintain their respective existences in the jurisdiction of their formation and all material authorizations, rights, franchises, privileges, consents, approvals, orders, licenses, permits, or registrations from any Governmental Agency that are necessary for the transaction of their respective business and qualify and remain qualified to transact business in each jurisdiction in which such qualification is necessary in view of their respective business or the ownership or leasing of their respective Properties except in each such case (a) a merger or consolidation permitted by Section 6.3, a Disposition permitted by Section 6.2 or as otherwise permitted by this Agreement and (b) where the failure to do so would not constitute a Material Adverse Effect. Notwithstanding the foregoing, Borrower may liquidate, wind up or dissolve any Restricted Subsidiary that does not constitute a Significant Subsidiary if such liquidation, winding up or dissolution would not have a Material Adverse Effect.

Section 5.3    5.3 Maintenance of Properties. Maintain, preserve and protect all of their respective Properties in good order and condition, subject to wear and tear in the ordinary course of business, and not permit any waste of their respective Properties, except that the failure to maintain, preserve and protect a particular item of Property that is at the end of its useful life or obsolete if the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, shall not constitute a violation of this covenant.

Section 5.4    5.4 Maintenance of Insurance.

(a)    General. Maintain liability, casualty, workers’ compensation and other insurance (subject to customary deductibles and retentions) with responsible insurance companies in such amounts and against such risks as is carried by responsible companies engaged in similar businesses and owning similar assets in the general areas in which Borrower and its Restricted Subsidiaries operate. Schedule 5.4 lists as of the Closing Date all insurance of any nature maintained for current occurrences by Borrower and each of its Restricted Subsidiaries, as well as a summary of the terms of such insurance. Borrower shall deliver to the Agent endorsements to all of its and its Restricted Subsidiaries’ (a) “All Risk” and business interruption insurance policies naming the Agent, for the benefit of the Agent and the Lenders, as a loss payee, and (b) general liability and other liability policies naming the Agent, for the benefit of the Agent and the Lenders, as an additional insured. All policies of insurance on real and personal property will include an endorsement, in form and substance acceptable to the Agent, showing loss payable to the Agent, for the benefit of the Agent and the Lenders, (Form 438 BFU or equivalent) and extra expense and

 

102


business interruption endorsements. Such endorsement, or an independent instrument furnished to the Agent, will provide that the insurer will give at least 10 days’ prior written notice to the Agent before any such policy or policies of insurance shall be altered or canceled.

(b)    Satellite Insurance.

(1)     (1) Deliver a Certificate of Borrower to the Agent within 120 days after the end of each Fiscal Year certifying that, subject to Section 5.4(b)(3), Borrower and each other Loan PartyRestricted Subsidiary have obtained and have in full force and effect:

(i)    with respect to each Covered Satellite for which the risk of loss passes to Borrower or such other Loan PartyRestricted Subsidiary at or before launch, launch insurance with respect to each such Covered Satellite covering the launch of such Covered Satellite and a period of time thereafter in an amount not less than the aggregate of the purchase price of such Covered Satellite, the purchase price of launch services therefor (other than for risks borne by the relevant satellite manufacturer or by the relevant launch services provider pursuant to any launch risk guarantee) and the premium payable for such insurance; provided that such launch insurance is available for a price, in an amount and on other terms and conditions that are, in the reasonable determination of Borrower, commercially reasonable; and

(ii)    at all times subsequent to the later of (x) initial completion of in-orbit testing and (y) the coverage period of launch insurance described in clause (i) above, In-Orbit Insurance with respect to such Covered Satellites other than Excluded Satellites in an amount not less than the Aggregate In-Orbit Insurance Amount (with the allocation of such insurance among such Covered Satellites being in Borrower’s discretion).

(2)     (2) Insurance policies required by Section 5.4(b)(1), shall:

(i)    contain no exclusions other than:

(A)    Acceptable Exclusions, and

(B)    such specific exclusions applicable to the performance of the Covered Satellite being insured as are reasonably acceptable to Borrower in order to obtain insurance for a price that is, and on other terms and conditions that are, commercially reasonable;

(ii)    provide coverage on an all-risks basis for loss of and damage to the Covered Satellite, subject to the exclusions specified above; and

 

103


(iii)    solely in the case of any such insurance policy of any Loan Party, name the Agent as an additional insured and loss payee.

(3)    (3) For any Covered Satellite, in lieu of In-Orbit Insurance, Borrower or such Loan PartyRestricted Subsidiary may, at its option, maintain In-Orbit Spare Capacity in which event such Covered Satellite (or portion, as applicable) shall be deemed to be insured for the percentage of the Covered Satellite’s (or applicable portion’s) net book value for which In-Orbit Spare Capacity is available. In the event of any loss, damage or failure affecting a Covered Satellite or the expiration and non-renewal of an insurance policy for a Covered Satellite resulting from a claim of loss under such policy that causes a failure to comply with Section 5.4(b)(1)(ii), Borrower and the other Loan PartiesRestricted Subsidiaries shall be deemed to be in compliance with Section 5.4(b)(1)(ii) for the 120 days immediately following such loss, damage or failure or policy expiration or non-renewal, provided that Borrower or such other Loan PartyRestricted Subsidiary, as the case may be, procures such In-Orbit Insurance or provides such In-Orbit Spare Capacity as necessary to comply with Section 5.4(b)(1)(ii) within such 120-day period.

Section 5.5    5.5 Compliance With Laws. Comply with all Requirements of Law noncompliance with which constitutes a Material Adverse Effect, except that Borrower and its Restricted Subsidiaries need not comply with a Requirement of Law then being contested by any of them in good faith by appropriate proceedings. Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance in all material respects by Borrower, its Subsidiaries and their respective directors, officers, employees and agents with AML Laws, Anti-Corruption Laws and applicable Sanctions.

Section 5.6     Inspection RightsInspection Rights. Upon reasonable notice, at any time during regular business hours and as often as reasonably requested (but not so as to materially interfere with the business of Borrower or any of its Restricted Subsidiaries) permit the Agent, the Issuing Lender, or any Lender, or any authorized employee, agent or representative thereof, at their own cost and expense prior to the occurrence of an Event of Default, to examine, audit and make copies and abstracts from the records and books of account of, and to visit and inspect the Properties of, Borrower and its Restricted Subsidiaries and to discuss the affairs, finances and accounts of Borrower and its Restricted Subsidiaries with any of their officers, key employees, internal accountants and, following the occurrence of an Event of Default, independent accountants. The Agent or any Lender, or any authorized employee, agent or representative shall (i) comply with all sign-in procedures for visitors, (ii) observe all general and safety, security, and governmental regulations in effect at the site, and (iii) observe all rules regarding restricted areas and restricted information as required by the United States Department of Defense.

Section 5.7    5.7 Keeping of Records and Books of Account. Keep adequate records and books of account reflecting all financial transactions in conformity in all material respects with GAAP, consistently applied, and in conformity in all material respects with all applicable requirements of any Governmental Agency having regulatory jurisdiction over Borrower and its Restricted Subsidiaries.

 

104


Section 5.8    5.8 Compliance With Agreements. Promptly and fully comply with all Contractual Obligations to which any one or more of them is a party, except for any such Contractual Obligations (a) the performance of which would not cause a Default or Event of Default or (b) then being contested by any of them in good faith by appropriate proceedings or (c) if the failure to comply does not constitute a Material Adverse Effect.

Section 5.9    Use of ProceedsUse of Proceeds. Use the proceeds of all Loans for working capital, capital expenditures, and any other lawful corporate purposes permitted hereunder, including, without limitation, refinancing or repayment of Indebtedness, Satellite Activities and Permitted Acquisitions; provided that, if, as of any date of determination, (a) the total amount of Unsubmitted Eligible Invoices of an ECA Borrower exceeds $50,000,000 as of such date, (b) the aggregate principal amount of outstanding Revolving Loans and Swing Line Advances exceeds 75% of the Revolving Commitments as of such date and (c) the Senior Secured Leverage Ratio, calculated on a Pro Forma Basis after giving effect to any Loan made on such date (including the use of proceeds thereof), exceeds 3.25 to 1.00, Borrower shall not be permitted to request any Revolving Loans and Swing Line Advances under this Agreement on such date to fund Capital Expenditures of an ECA Borrower that would otherwise be eligible for reimbursement by an ECA Lender. Use each Letter of Credit for the lawful corporate purposes of Borrower and its Restricted Subsidiaries.

Section 5.10    5.10 Hazardous Materials Laws. Keep and maintain all Real Property and each portion thereof in compliance in all material respects with all applicable Hazardous Materials Laws, except to the extent that no Material Adverse Effect could reasonably be expected to result therefrom, and promptly notify the Agent in writing (attaching a copy of any pertinent written material) of (a) any and all material enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened in writing by a Governmental Agency pursuant to any applicable Hazardous Materials Laws, (b) any and all material claims made or threatened in writing by any Person against Borrower relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials and (c) discovery by any Senior Officer of Borrower of any material occurrence or condition on any real Property adjoining or in the vicinity of such Real Property that could reasonably be expected to cause such Real Property or any part thereof to be subject to any material restrictions on the ownership, occupancy, transferability or use of such Real Property under any applicable Hazardous Materials Laws.

Section 5.11    5.11 Designation of Subsidiaries. Borrower may at any time (a) designate any Unrestricted Subsidiary as a Restricted Subsidiary and (b) designate any existing or newly acquired or formed Restricted Subsidiary of Borrower as an Unrestricted Subsidiary, unless such Restricted Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any lien on any property of, any Loan Party or any other Restricted Subsidiary; provided that, (i) immediately before and after giving effect to any such designation, no Event of Default shall have occurred and be continuing, (ii) Borrower shall be in compliance with the financial covenants set forth in Sections 6.13 and 6.14 (and a certificate of a Senior Officer of Borrower setting forth the related calculations) and (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if, after giving effect to such designation, it would be a “Restricted Subsidiary”, “guarantor” or “borrower” (or similar designation) for the purpose of any Indebtedness of Borrower or any of its Restricted Subsidiaries (provided that notwithstanding this

 

105


subclause (iii) Viasat Brasil Participações Limitada, a limited liability company incorporated under the laws of Brazil (“Viasat Brazil”) and/or its Subsidiaries may be classified as “Restricted Subsidiaries” under the indenture governing the 2025 Senior Notes (or any Incremental Equivalent Indebtedness in the form of senior unsecured, secured or subordinated notes issued by Borrower) so long as Viasat Brazil and/or its Subsidiaries (as applicable) are not issuers of, guarantors of or otherwise contractually obligated with respect to, the 2025 Senior Notes (or such Incremental Equivalent Indebtedness, as applicable)). The designation of any Subsidiary as an Unrestricted Subsidiary after the Second Amendment Effective Date shall constitute an Investment by the applicable Loan Party or Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value (as reasonably determined in good faith by a Senior Officer of Borrower) of such Loan Party’s or such Restricted Subsidiary’s (as applicable) Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the applicable Loan Party or Restricted Subsidiary in such Unrestricted Subsidiary in an amount equal to the fair market value (as reasonably determined in good faith by a Senior Officer of Borrower) at the date of such designation of such Loan Party’s or such Restricted Subsidiary’s (as applicable) Investment in such Subsidiary. Any designation by Borrower pursuant to this Section 5.11 shall be evidenced to Agent by promptly delivering to Agent a certificate of a Responsible Official of Borrower giving effect to such designation and a certifying that such designation complies with the provisions of this Section 5.11. Notwithstanding the foregoing, any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary may not be subsequently re-designated as an Unrestricted Subsidiary until at least two full Fiscal Quarters have passed since the date such Unrestricted Subsidiary was re-designated as a Restricted Subsidiary.

Section 5.12    5.12 Future Restricted Subsidiaries; Additional Security Documentation.

(a)    Cause each future Significant Domestic Subsidiary to promptly execute and deliver to the Agent (x) no later than 10 Banking Days after the first Determination Date (as defined below) following the creation or acquisition of such Significant Domestic Subsidiary (including by way of division) or the date on which such Domestic Restricted Subsidiary becomes a Significant Domestic Subsidiary, or (y) in the case of a Significant Domestic Subsidiary created or acquired in connection with a Permitted Acquisition, no later than six (6) months after the consummation of such Permitted Acquisition, in each case (i) the Subsidiary Guaranty, the Subsidiary Pledge Agreement and the Subsidiary Security Agreement (or appropriate joinders thereto, as applicable), and, as may reasonably be requested by the Agent, landlord/mortgagee waivers (provided that, in the case of landlord/mortgagee waivers, if Borrower uses commercially reasonable efforts to obtain such waivers from the applicable counterparties thereto, Borrower’s obligations with respect to such waivers under this Section 5.12(a) shall be satisfied), and (ii) an opinion of counsel from counsel and in form and substance reasonably acceptable to the Agent.

(b)    Pledge to the Agent (for the benefit of the Secured Parties) pursuant to the Borrower Pledge Agreement (or, if applicable, a Significant Domestic Subsidiary to pledge to the Agent (for the benefit of the Secured Parties) pursuant to the Subsidiary Pledge Agreement) (x) no later than 10 Banking Days after the first Determination Date (as defined below) following the creation or acquisition of a first-tier Significant Foreign Subsidiary or a Significant Foreign Subsidiary Holdco or the date on which a first-tier Foreign Restricted Subsidiary becomes a

 

106


Significant Foreign Subsidiary or a Foreign Subsidiary Holdco becomes a Significant Foreign Subsidiary Holdco, or (y) in the case of a first-tier Significant Foreign Subsidiary or a Significant Foreign Subsidiary Holdco created or acquired in connection with a Permitted Acquisition, no later than six (6) months after the consummation of such Permitted Acquisition, in each case (i) 65% of the voting Equity Interests of such first-tier Significant Foreign Subsidiary or such Significant Foreign Subsidiary Holdco formed or acquired after the Closing Date and (ii) 100% of the non-voting Equity Interests of such first-tier Significant Foreign Subsidiary or such Significant Foreign Subsidiary Holdco.

(c)    In addition to the foregoing, except to the extent set forth in the Borrower Security Agreement, the Borrower Pledge Agreement, the Subsidiary Pledge Agreement and the Subsidiary Security Agreement, respectively, Borrower, its Significant Domestic Subsidiaries and each Subsidiary Guarantor shall cause such documents and instruments as may be reasonably requested by the Agent (or any Lender through the Agent) from time to time to be executed and delivered and do such further acts and things as reasonably may be required in order for the Agent, for the benefit of the Secured Parties, to obtain a fully perfected first priority Lien on all Collateral, subject to Liens permitted by Section 6.9 and subject to Section 9.2(e). For purposes of this Section 5.12, the “Determination Date” shall be the date of delivery of the annual financial statements pursuant to Section 7.1(c).

(d)    In the event that any ECA Borrower or ECA Guarantor ceases to be party to a Permitted ECA Financing, including due to the repayment of its obligations under such Permitted ECA Financing, and such ECA Borrower or ECA Guarantor is (or would be, but for the fact that it is an ECA Borrower or ECA Guarantor) a Significant Domestic Subsidiary or a Significant Foreign Subsidiary, Borrower shall comply with this Section 5.12 with respect to such Restricted Subsidiary within 90 calendar days from the date such Restricted Subsidiary ceases to be a party to a Permitted ECA Financing.

Section 5.13    5.13 Certain ECA Revenue. Unless the Agent shall otherwise consent in writing with respect to any Permitted ECA Financing incurred under Section 6.10(m)(i), 100% of the ECA Revenues Amount for each ECA Project financed by a Permitted ECA Financing incurred under Section 6.10(m)(i) that is then outstanding, to the extent not received by a Loan Party, must be transferred to a Loan Party no later than 60 days following the end of each Fiscal Quarter (or 105 days in the case of the fourth Fiscal Quarter of each Fiscal Year); provided that, notwithstanding the foregoing, no portion of the ECA Revenues Amount shall be required to be so transferred to a Loan Party if such transfer would be prohibited by applicable Law. Notwithstanding the foregoing, this Section 5.13 shall not apply to any Specified ECA Project or Specified ECA Financing.

For purposes of this Section 5.13, “ECA Revenues Amount” means, with respect to any applicable ECA Project (excluding any Specified ECA Project) for any Fiscal Quarter, an amount equal to the total subscription revenues received by any ECA Borrower or ECA Guarantor from non-Affiliated third party retail or wholesale subscribers of their respective satellite broadband services during such Fiscal Quarter to the extent generated from such ECA Project; provided, that, in the event that subscription revenues are generated from more than one ECA Project subject to a Permitted ECA Financing, the calculation of the ECA Revenues Amounts for such ECA Projects shall be without duplication.

 

107


ARTICLE 6

NEGATIVE COVENANTS

So long as any Advance remains unpaid, or any other Obligation remains unpaid (other than contingent indemnification obligations for which no claim has been made), or any portion of any Commitments remains in force or any Letter of Credit is outstanding, Borrower shall not, and shall not permit any of its Restricted Subsidiaries (or, in the case of Section 6.15, any of its Subsidiaries) to, unless the Agent (with the written approval of the Requisite Lenders or, if required by Section 11.2, of all of the Lenders) otherwise consents:

Section 6.1    6.1 Payment of Subordinated Obligations. Pay any (a) principal (including sinking fund payments) or any other amount (other than scheduled interest payments) with respect to any Subordinated Obligation, or purchase or redeem (or offer to purchase or redeem) any Subordinated Obligation, or deposit any monies, securities or other Property with any trustee or other Person to provide assurance that the principal or any portion thereof of any Subordinated Obligation will be paid when due or otherwise to provide for the defeasance of any Subordinated Obligation (unless permitted pursuant to an Affiliate Subordination Agreement), in each case prior to the scheduled maturity thereof or (b) scheduled interest on any Subordinated Obligation unless the payment thereof is then permitted pursuant to the terms of the indenture or other agreement governing such Subordinated Obligation, in each case, other than (i) in connection with a refinancing, refunding, renewal, exchange or extension of any such Subordinated Obligation to the extent permitted by Section 6.10(f), (ii) such payments or deposits that are made with the Available Basket Amount so long as both before and after giving effect to such payment on a Pro Forma Basis, (a) no Event of Default exists or would result therefrom (b) the Senior Secured Leverage Ratio does not exceed 3.25 to 1.0 and (c) at any time the Temporary Leverage Increase is applicable, the Total Leverage Ratio does not exceed 5.00 to 1.0 or (iii) payments or deposits in an amount not to exceed, in any Fiscal Year, (a) the greater of (x) $75,000,000 in the aggregate and (y) an amount equal to 25% of Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available less (b) the aggregate amount of Distributions made during such Fiscal Year pursuant to Section 6.6(d) less (c) the aggregate amount available pursuant to this clause (iii) reallocated to the making of Investments pursuant to Section 6.16(m).

Section 6.2    6.2 Disposition of Property. Make any Disposition of its Property, whether now owned or hereafter acquired, except (a) a Disposition by Borrower to a Wholly-Owned Restricted Subsidiary which is a Subsidiary Guarantor, or by a Restricted Subsidiary to Borrower or another Restricted Subsidiary (provided that any Disposition by a Subsidiary Guarantor must be to another Subsidiary Guarantor or to Borrower), (b) Investments permitted by Section 6.16 to the extent constituting Dispositions, (c) the Disposition of any Equity Interests of (or other Investments in) any Joint Venture to the extent required by the terms of any agreement governing such Joint Venture, (d) provided that no Event of Default then exists or would result therefrom, Dispositions of (i) accounts receivable and (ii) collateral securing accounts receivable and guarantees supporting accounts receivable, in each case set forth in clauses (i) and (ii) as transferred in connection with a receivables financing permitted under Section 6.10(k) (it being agreed that any lien releases to be executed by the Agent in connection therewith shall be limited

 

108


to Collateral not exceeding in the aggregate the greater of (i) $25,000,000 and (ii) 12.5% of Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available and shall otherwise be in form reasonably acceptable to the Agent), (e) provided that no Event of Default then exists or would result therefrom, Dispositions, of which the fair market value (as reasonably determined in good faith by a Senior Officer of Borrower), when aggregated with the proceeds of all other Dispositions incurred under this clause (e) within the same Fiscal Year, are less than or equal to the greater of (i) $100,000,000 and (ii) an amount equal to 12.5% of Consolidated Total Assets, (f) sales, rentals or leases of satellite capacity, bandwidth, beams, transponders or threads or other grants of rights of satellite use or of any other portion of a Satellite in the ordinary course of business, (g) the Disposition of any Satellite (other than the ViaSat-1 and ViaSat-2 Satellites) for fair market value (as reasonably determined in good faith by a Senior Officer of Borrower) to any Person for whom such Satellite was procured that is not an Affiliate of Borrower and (h) provided that no Event of Default then exists or would result therefrom, other Dispositions so long as (i) any such Disposition is for consideration at least equal to the fair market value thereof and (ii) at least 75% of the consideration received from any such Disposition shall be Cash or Cash Equivalents (provided that (x) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto for which internal financial statements are available immediately preceding such date or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s or such Restricted Subsidiary’s balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet in the good faith determination of the Borrower) of the Borrower or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are extinguished in connection with the transactions relating to such Disposition, or that are assumed by the transferee of any such assets, property or Equity Interests, in each case, pursuant to a written agreement that releases the Borrower or such Restricted Subsidiary, as the case may be, from further liability therefor; (y) any securities, notes or other similar obligations received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into Cash or Cash Equivalents, or by their terms are required to be satisfied for Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received), in each case within 180 days following the consummation of such Disposition; and (z) any Designated Noncash Consideration received by the Borrower or any of its Restricted Subsidiaries in such Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this subclause (z) that is at that time outstanding, not to exceed the greater of (I) $25,000,000 and (II) 2.0% of Consolidated Total Assets, calculated at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value) shall each be deemed to be Cash Equivalents for the purposes of this clause (h)(ii); provided further that notwithstanding the foregoing, the 75% limitation referred to in clause (h)(ii) of this Section 6.2 shall be deemed satisfied with respect to any Disposition in which the Cash and Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, if the proceeds before tax would have complied with the aforementioned 75.0% limitation); provided that the sale or other disposition of the assets of the Borrower and its Restricted Subsidiaries constituting 50% or more

 

109


in the aggregate of the Consolidated Total Assets as of the date of any such sale or other disposition shall not be treated as a “Disposition” but rather shall constitute a “Change in Control”.

Section 6.3     MergersMergers . Merge or consolidate with or into any Person or consummate any Delaware LLC Division, except (a) mergers and consolidations of a Restricted Subsidiary of Borrower into Borrower or a Restricted Subsidiary, or of Restricted Subsidiaries with each other, (b) a merger or consolidation of any Restricted Subsidiary of Borrower to the extent in connection with a disposition not prohibited by Section 6.2 and (c) a merger or consolidation of a Person into Borrower or with or into a Wholly-Owned Restricted Subsidiary of Borrower which constitutes a Permitted Acquisition; provided that, in each case set forth in clauses (a) and (c) above, (i) Borrower is the surviving entity of any merger to which it is a party, (ii) a Subsidiary Guarantor is the surviving entity of any merger between a non-Subsidiary Guarantor and a Subsidiary Guarantor, (iii) no Event of Default then exists or would result therefrom and (iv) Borrower and each of the Subsidiary Guarantors execute such amendments to the Loan Documents as the Agent may reasonably determine are appropriate as a result of such merger in order to preserve the enforceability of the Loan Documents on the parties thereto and their successors, if any, and except to the extent set forth in the Security Agreements, maintain the perfection of the Agent’s Liens on the Collateral.

Section 6.4     Hostile AcquisitionsHostile Acquisitions. Use the proceeds of any Loan in connection with the acquisition of part or all of a voting interest of five percent (5%) or more in any corporation or other business entity if such acquisition is opposed by the board of directors or equivalent governing body of such corporation or business entity.

Section 6.5    AcquisitionsAcquisitions. Make any Acquisition other than a Permitted Acquisition.

Section 6.6     DistributionsDistributions . Make any Distribution, whether from capital, income or otherwise, and whether in Cash or other Property if immediately before and after giving effect to such Distribution, (x) the Senior Secured Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Distribution, exceeds 3.00 to 1.00, (y) at any time the Temporary Leverage Increase is applicable, the Total Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Distribution, exceeds 5.00 to 1.00 or (z) Liquidity is less than $50,000,000, except:

(a)    Distributions by any Restricted Subsidiary to Borrower or to any other Restricted Subsidiary (and if such Restricted Subsidiary is not a Wholly-Owned Restricted Subsidiary, to the other holders of its Equity Interests, provided that Borrower or such other Restricted Subsidiary receives at least its pro rata share of such Distribution based on its Equity Interests);

(b)    Distributions by any Restricted Subsidiary or Borrower involving the retirement, redemption, purchase or other acquisition of Equity Interests under any stock option or other equity compensation plan or any other agreement to compensate employees, officers, directors, management or consultants of Borrower or its Restricted Subsidiaries, not to exceed $5,000,000 in the aggregate in any Fiscal Year; provided that if at the end of the applicable Fiscal Year, Distributions made pursuant to this clause (b) are less than $5,000,000 in the aggregate in

 

110


such Fiscal Year, then the amount by which $5,000,000 exceeds the Distributions made in such Fiscal Year pursuant to this clause (b) may be carried forward and included in the aggregate amount of Distributions permitted to be made in succeeding Fiscal Years pursuant to this clause (b);

(c)    stock dividends payable on Common Stock;

(d)    Distributions not to exceed, in any Fiscal Year, (x) the greater of (i) $75,000,000 in the aggregate and (ii) an amount equal to 25% of Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available less (y) the aggregate amount of prepayments of Subordinated Obligations made during such Fiscal Year pursuant to Section 6.1(iii) less (z) any amounts available pursuant to this clause (d) which is reallocated to the making of Investments pursuant to Section 6.16(m); and

(e)    Distributions made with the Available Basket Amount; provided that, with respect to any Distributions made with the Available Basket Amount, such Distributions shall only be permitted pursuant to this Section 6.6(e) so long as both immediately before and after giving effect to such payment on a Pro Forma Basis, the Senior Secured Leverage Ratio does not exceed 4.00 to 1.0 and no Event of Default exists.

Section 6.7    ERISAERISA . At any time, (a) permit any Pension Plan to: (i) engage in any non-exempt “prohibited transaction” (as defined in Section 4975 of the Code); (ii) fail to comply with ERISA or any other applicable Laws; (iii) incur any material “accumulated funding deficiency” (as defined in Section 302 of ERISA)fail to comply with the Pension Funding Rules; or (iv) terminate in any manner, which, with respect to each event listed above, could reasonably be expected to result in a Material Adverse Effect or (b) withdraw, completely or partially, from any Multiemployer Plan if to do so could reasonably be expected to result in a Material Adverse Effect.

Section 6.8    6.8 Change in Nature of Business. Engage in any businesses other than the Permitted Business.

Section 6.9     LiensLiens . Create, incur, assume or suffer to exist any Lien of any nature upon or with respect to any of their respective Properties, whether now owned or hereafter acquired, except:

(a)    Liens existing on the Closing Date and disclosed in Schedule 6.9 and any renewals/extensions or amendments thereof, provided that the obligations secured or benefited thereby are not increased (except as expressly contemplated by the contracts or other instruments governing such Liens, as in effect on the Closing Date);

(b)    Liens in favor of the Agent (for the benefit of the Secured Parties) pursuant to the Security Agreements;

(c)    Permitted Encumbrances;

 

111


(d)    Liens on personal property acquired by Borrower or any of its Restricted Subsidiaries that were in existence at the time of the acquisition of such Property and were not created in contemplation of such acquisition;

(e)    Liens on real property acquired by Borrower or any of its Restricted Subsidiaries for use in the business of Borrower or such Restricted Subsidiary;

(f)    Liens on Property or Equity Interests of a Person at the time such Person, as permitted by this Agreement, becomes a Restricted Subsidiary or is merged or consolidated with or into Borrower or any of its Restricted Subsidiaries; provided, however, that such Liens were in existence at the time such Person became a Restricted Subsidiary or merged or consolidated with or into Borrower or any of its Restricted Subsidiaries and were not created in contemplation of such event; provided further, however, that any such Lien may not extend to any other property owned by Borrower or any other Restricted Subsidiary thereof;

(g)    Liens securing Indebtedness permitted by Section 6.10(d); provided, that (i) any such Lien shall attach only to the Property, insurance or services purchased or otherwise leased, constructed, installed, improved, designed, repaired or maintained, and any insurance, licenses, permits, authorizations and construction or launch contracts relating thereto, and (ii) any such Lien shall be created concurrently with or within twelve (12) months following the acquisition of such Property, insurance or services;

(h)    Liens securing obligations of Borrower or any of its Restricted Subsidiaries under any Secured Hedging Agreement;

(i)    Liens securing Indebtedness permitted under Section 6.10(k);

(j)    Liens encumbering (i) ECA Assets securing Permitted ECA Financings and (ii) assets of Foreign Restricted Subsidiaries securing Indebtedness permitted under Section 6.10(m)(ii);

(k)    Liens securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed the greater of (i) $75,000,000 and (ii) an amount equal to 25% of Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available; provided that the aggregate amount of Indebtedness and other obligations secured by Liens on Collateral shall not exceed $25,000,000 at any time outstanding (andwhich Liens may, at the election of Borrower, any Liens described in this proviso may consist of pledges or deposits of Cash or Cash Equivalents to secure obligations in respect of letters of credit, bank guarantees, and Hedging Agreements permitted under Section 6.20) and mayany such Liens on Collateral (other than pledges or deposits of Cash or Cash Equivalents) shall be subject to an intercreditor agreement reasonably acceptable to the Agent which may provide for such Liens to be pari passu with or junior to the Liens on suchthe same Collateral in favor of the Agent (for the benefit of the Secured Parties) so long as such Liens are subject to an intercreditor agreement reasonably acceptable to the Agent);

(l)    (i) Liens on assets of Viasat Technologies Limited securing Indebtedness permitted by Section 6.10(q) and (ii) Liens on the Equity Interests in Viasat Technologies Limited

 

112


and any dividends, stocks, shares, warrants, securities, rights, monies or other property accruing on or that constitute proceeds of such Equity Interests securing Borrower’s Guaranty Obligations with respect to the Indebtedness of Viasat Technologies Limited permitted by Section 6.10(q); and

(m)    Liens securing Permitted Additional Indebtedness (to the extent secured); provided that such Liens are subject to an applicable Intercreditor Agreement in accordance with the definition of “Permitted Additional Indebtedness”.

Section 6.10    6.10 Indebtedness and Guaranty Obligations. Create, incur or assume any Indebtedness or Guaranty Obligation except:

(a)    Indebtedness and Guaranty Obligations existing on the Closing Date and disclosed in Schedule 6.10, and refinancings, renewals, extensions or amendments that do not increase the amount thereof (except by an amount no greater than the sum of unpaid accrued interest thereon, any premium reasonably determined to be necessary to accomplish such transaction, any original issue discount on such refinancing, renewing, extending or replacement Indebtedness, and reasonable fees and expenses incurred in connection with the foregoing);

(b)    Indebtedness and Guaranty Obligations under the Loan Documents;

(c)    Subject to compliance with Section 6.16, unsecured Indebtedness (and unsecured Guaranty Obligations with respect thereto) of any Restricted Subsidiary to Borrower or to any other Restricted Subsidiary, or of Borrower to any Restricted Subsidiary;

(d)    Indebtedness consisting of (i) Capital Lease Obligations or (ii) otherwise incurred to finance all or any part of (X) the purchase, lease, construction, installation or improvement of any Property (including, without limitation, any satellites or related gateway facilities, earth stations and other ground infrastructure), (Y) the design, repair or maintenance of any Satellite Project (including, without limitation, any satellites or related gateway facilities, earth stations and other ground infrastructure) or (Z) satellite launch or in-orbit insurance premiums or launch services (so long as, in the case of this clause (ii) (A) the Indebtedness incurred therewith shall not exceed one hundred percent (100%) of the price or cost of the purchase, lease, construction, installation, improvement, design, repair or maintenance of such Property or such premiums or launch services, as applicable, and (B) such Indebtedness shall be incurred concurrently with or within twelve (12) months following the purchase, lease, construction, installation, improvement, design, repair or maintenance of such Property or incurrence of such premiums or launch services, as applicable), and any refinancings, renewals, extensions or amendments of such Indebtedness under clause (i) or (ii) that do not increase the amount thereof (except by an amount no greater than the sum of unpaid accrued interest thereon, any premium reasonably determined to be necessary to accomplish such transaction, any original issue discount on such refinancing, renewing, extending or replacement Indebtedness, and reasonable fees and expenses incurred in connection with the foregoing); provided that, in the case of any Indebtedness incurred under this clause (d), if immediately before or after giving effect to the incurrence of any such Indebtedness, the Senior Secured Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom) is greater than 4.00 to 1.00, the outstanding principal amount of such Indebtedness incurred at a time when the Senior Secured Leverage Ratio (calculated on a Pro Forma Basis after giving effect

 

113


to the incurrence of such Indebtedness and the application of the proceeds therefrom) is greater than 4.00 to 1.00, shall not exceed the sum of (x) $50,000,000 plus (y) 10% of Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available;

(e)    Indebtedness incurred to finance the purchase, construction or improvement of real property used in the business of Borrower or any of its Restricted Subsidiaries;

(f)    Subordinated Obligations, and any Permitted Refinancing Indebtedness in respect thereof;

(g)    Indebtedness under Hedging Agreements permitted under Section 6.20;

(h)    Subject to compliance with Section 6.16, unsecured Guaranty Obligations in support of the obligations of a Wholly-Owned Subsidiary or a Joint Venture; provided that such obligations of a Wholly-Owned Subsidiary or a Joint Venture are not prohibited by this Agreement;

(i)     Assumed Acquisition Indebtedness of a Person acquired in a, and any Permitted Acquisition which is outstanding at the time of such acquisition (other thanRefinancing Indebtedness incurred solely in contemplation of such acquisition)in respect thereof;

(j)    Indebtedness or Guaranty Obligations incurred in connection with Investments permitted under clause (m) of Section 6.16;

(k)    Indebtedness incurred by Borrower or any Restricted Subsidiary arising from the factoring or securitizing of accounts receivable in the ordinary course of business in an aggregate principal amount outstanding at any one time not to exceed the greater of (i) $25,000,000 and (ii) 12.5% of Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available;

(l)    Permitted Additional Indebtedness;

(m)    Indebtedness of (i) any ECA Borrower and any ECA Guarantor under a Permitted ECA Financing and (ii) any Foreign Restricted Subsidiary; provided that if immediately before or after giving effect to the incurrence of any such Indebtedness the Senior Secured Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom) exceeds 4.00 to 1.00, then no additional Indebtedness may be incurred under this clause (m) if (or that would otherwise cause) the aggregate outstanding principal amount of all Indebtedness under this clause (m) incurred at a time when the Senior Secured Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom) exceeded 4.00 to 1.00 would exceed the sum of (A) $50,000,000 plus (B) 10% of Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available;

 

114


(n)    Guaranty Obligations of Borrower in respect of Indebtedness relating to Permitted ECA Financings and permitted by Section 6.10(m) (which Guaranty Obligations shall be unsecured except for any security interest in, and/or pledge of, Equity Interests in any ECA Borrower and any ECA Guarantor and any dividends, stocks, shares, warrants, securities, rights, monies or other property accruing on or that constitute proceeds of such Equity Interests);

(o)    Indebtedness in a principal aggregate amount at any time outstanding not to exceed the greater of (i) $75,000,000 and (ii) an amount equal to 25% of Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available;

(p)    Obligations under Bank Products; and

(q)    Exim Indebtedness in an aggregate principal amount not to exceed $386,700,000 at any time outstanding and any Permitted Refinancing Indebtedness in respect thereof.

provided that all Indebtedness owed by Borrower or a Subsidiary Guarantor to a Subsidiary that is not a Subsidiary Guarantor shall be subordinated pursuant to an Affiliate Subordination Agreement.

Section 6.11    6.11 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of Borrower other than (a) employment, consulting, service, termination, compensation, expense reimbursement or indemnification arrangements with directors or officers, or loans or advances to officers, in each case in the ordinary course of business and otherwise permitted under this Agreement, (b) transactions that are fully disclosed to the board of directors (or a committee thereof) of Borrower and expressly authorized by a resolution of the board of directors (or committee) of Borrower which is approved by a majority of the directors (or committee) not having an interest in the transaction, (c) transactions between or among Borrower and its Restricted Subsidiaries, (d) transactions on overall terms at least as favorable to Borrower or its Restricted Subsidiaries as would be the case in an arm’s-length transaction between unrelated parties of equal bargaining power and (e) transactions specifically permitted by Sections 6.2(a) and (b), Section 6.6 and Sections 6.16(e), (f), (j), (l) and (m) and (f) payment by Borrower or any of its Restricted Subsidiaries of management fees or fees for services not to exceed $500,000 in the aggregate in any fiscal year (exclusive of reimbursements to Borrower by its Restricted Subsidiaries of actual costs and allocable overhead), to Borrower or any Affiliate of Borrower (as such amount may be increased with the prior written approval of the Agent).

Section 6.12    Negative PledgesNegative Pledges. Agree with any Person other than the Agent not to grant a security interest in or otherwise encumber, any of its property, or covenant to any other Person that Borrower or any Subsidiary Guarantor in the future will refrain from creating, incurring, assuming or allowing any Lien with respect to any of Borrower’s or such Subsidiary Guarantor’s property (including under the specified conditions set forth in Section 6.21), in each case, except (i) as set forth in the documents implementing any Permitted Additional Indebtedness, (ii) customary restrictions on assignment in leases, license, contracts and other agreements, (iii) any agreement evidencing Indebtedness secured by Liens permitted by Section 6.9, as to the assets securing such Indebtedness, (iv) any agreement evidencing an asset sale or other disposition

 

115


permitted by this Agreement, as to the assets being sold or disposed of, (v) restrictions or conditions contained in the documents governing the 2025 Senior Notes and the documents governing any refinancing, renewal, extension or amendment thereof permitted by Section 6.10(a) (provided such restrictions in any documents governing any refinancing, renewal, extension or amendment thereof permitted by Section 6.10(a) are not materially more restrictive, taken as a whole and as determined in good faith and certified on behalf of Borrower by a Responsible Official, than those in the Indebtedness being refinanced), (vi) intellectual property licenses, (vii) Communications Licenses and other government licenses, authorizations, approvals, orders, consents and permits, (viii) customary provisions with respect to the creation or assumption of any such Liens in joint venture agreements to the extent such Joint Ventures are permitted hereunder and (ix) as set forth in the documents governing any Permitted ECA Financings so long as such restrictions relate only to ECA Borrowers, ECA Guarantors and ECA Assets.

Section 6.13    6.13 Total Leverage Ratio. Except with the written consent of the Requisite Lenders, permit the Total Leverage Ratio as of the last day of any Fiscal Quarter (i) ending on or prior to December 31, 2023 to be greater than 6.50 to 1.00, (ii) ending after December 31, 2023 and on or prior to December 31, 2024 to be greater than 6.00 to 1.00 or (iii) ending after December 31, 2024 to be greater than 5.75 to 1.00; provided, however, that in the event of (a) any Permitted Acquisition for which the aggregate purchase consideration exceeds $400,000,000 and/or (b) any Satellite Trigger, in either case occurring after December 31, 2023, the maximum permitted Total Leverage Ratio shall increase by 0.50x above the applicable covenant level for the six consecutive Fiscal Quarter period beginning with the Fiscal Quarter in which each such Permitted Acquisition or Satellite Trigger occurs, so long as Borrower is in compliance on a Pro Forma Basis with this Section 6.13 at such increased level after giving effect to such Permitted Acquisition or Satellite Trigger (the aforementioned increase in such level, the “Temporary Leverage Increase”).

Section 6.14    6.14 Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the last day of any Fiscal Quarter to be less than 3.252.75 to 1.00; provided, however, that in the event of (a) any Permitted Acquisition for which the aggregate purchase consideration exceeds $400,000,000 and/or (b) any Satellite Trigger, the minimum required Interest Coverage Ratio shall decrease by 0.25x for the six consecutive Fiscal Quarter period beginning with the Fiscal Quarter in which each such Permitted Acquisition or Satellite Trigger occurs, so long as Borrower is in compliance on a Pro Forma Basis with this Section 6.14 at such decreased level after giving effect to such Permitted Acquisition or Satellite Trigger.

Section 6.15    6.15 Use of Proceeds; Sanctions; Anti-Corruption Laws. Borrower will not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Advance or Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or AML Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, to the extent such activities, business or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States or in a European Union member state or (C) in any manner that would result in the violation of any Sanctions or AML Laws applicable to any party hereto.

 

116


Section 6.16    Investments Investments. Make any Investment if, immediately before and after giving effect to such Investment, (x) the Senior Secured Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Investment, exceeds 4.00 to 1.00, (y) at any time the Temporary Leverage Increase is applicable, the Total Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Investment, exceeds 5.25 to 1.00 or (z) Liquidity is less than $50,000,000, other than:

(a)    [reserved];

(b)    Investments consisting of Cash Equivalents;

(c)    Investments in a Person that is the subject of a Permitted Acquisition;

(d)    Investments consisting of advances to officers, directors and employees of a Borrower or of any Restricted Subsidiary for travel, entertainment, relocation, anticipated bonus and analogous ordinary business purposes;

(e)    Investments in a Loan Party;

(f)    Investments by any Loan Party in any Subsidiary (other than a Loan Party) or any Joint Venture; provided that (i) at the time any such Investment is made (and giving effect thereto), the aggregate amount of all such Investments in all such Subsidiaries and Joint Ventures made pursuant to this clause (f) then outstanding does not exceed one and one-half (1.50) times Borrower’s consolidated trailing twelve month EBITDA as of Borrower’s most recent Fiscal Quarter end for which financial statements prepared on a consolidated basis in accordance with GAAP are available and (ii) the Agent (for the benefit of the Secured Parties) has received a pledge of Equity Interests in any such Subsidiary or Joint Venture to the extent required pursuant to Section 5.12, and Borrower is otherwise in compliance with any deliveries expressly contemplated by Section 5.12 with respect to any such Subsidiary or Joint Venture;

(g)    Investments consisting of (i) the extension of credit to customers of Borrower and its Subsidiaries for the purpose of financing such customers’ purchases of Borrower’s and/or its Subsidiaries’ products and services, not to exceed $10,000,000 in the aggregate outstanding at any time during the term of the Agreement or (ii) the extension of credit to customers or suppliers of Borrower and its Subsidiaries in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof;

(h)    Investments received in connection with the settlement of a bona fide dispute with another Person;

(i)    Investments representing all or a portion of the sales price of Property sold or services provided to another Person;

(j)    Investments by any Restricted Subsidiary that is not a Loan Party (i) in any other Person that are made pursuant to another clause of this Section 6.16 to the extent the amount of such Investment consists of amounts substantially concurrently received by such Restricted Subsidiary from Investments made in such Restricted Subsidiary pursuant to clause (f), (l), (m) or (n) of this Section 6.16 and (ii) in any other Subsidiary of Borrower or a Joint Venture;

 

117


(k)    Investments in Viasat Technologies Limited in respect of ViaSat-2 Other Satellite Project not to exceed $250,000,000 in the aggregate;

(l)    Investments by Borrower or any of its Restricted Subsidiaries, whether directly or indirectly, in Joint Ventures contemplated by the European JV Documents not to exceed $175,000,000 in the aggregate;

(m)    Investments not to exceed (1) in any Fiscal Year (when taken together with all other Investments then outstanding made under this clause (m) in such Fiscal Year), an amount equal to the greater of (i) $225,000,000 and (ii) an amount equal to 10% of the Consolidated Total Assets as of the most-recently ended Fiscal Quarter for which financial statements prepared on a consolidated basis in accordance with GAAP are available; provided that (i) if at the end of the applicable Fiscal Year, Investments made pursuant to this clause (m)(1) are less than $225,000,000 in the aggregate in such Fiscal Year, then the amount by which $225,000,000 exceeds the Investments made in such Fiscal Year pursuant to this clause (m)(1) may be carried forward and included in the aggregate amount of Investments permitted to be made in succeeding Fiscal Years pursuant to this clause (m)(1) (including the application of any carry-forward permitted by this subclause (i)) and (ii) in no event shall the amount of Investments made pursuant to this clause (m)(1) in any Fiscal Year exceed $550,000,000 plus (2) any unused amounts under Section 6.1(iii) and Section 6.6(d); and

(n)    Investments made with the Available Basket Amount.

For purposes of determining compliance with this Section 6.16, (x) an Investment need not be made solely by reference to one category of Investments described in clauses (a) through (n) above but may be made under any combination of such categories (including in part under one such category and in part under any other such category) and (y) in the event that an Investment (or any portion thereof) meets the criteria of one or more of such categories of Investments described in clauses (a) through (n) above, Borrower, in its sole discretion, may classify or may subsequently reclassify at any time such Investment (or any portion thereof) in any manner that complies with this covenant; provided that all Investments made under Section 6.16(n) shall at all times be justified in reliance only on the exception in Section 6.16(n).

Section 6.17    Capital ExpendituresCapital Expenditures. Make any Capital Expenditure if, immediately before and after giving effect to the making thereof, (x) the Senior Secured Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the making of any such Capital Expenditure) exceeds 4.00 to 1.00 or (y) Liquidity is less than $50,000,000, other than:

(a)    Capital Expenditures in respect of the Existing Satellite Systems, including all Satellite Activities in connection with Existing Satellite Systems, in an amount not to exceed $40,000,000 in the aggregate;

(b)    Capital Expenditures in respect of any Other Satellite Projects (“Satellite Project Capex”), in an amount not to exceed $750,000,000 in the aggregate per Satellite Project;

(c)    Capital Expenditures (including, for the avoidance of doubt, Capital Expenditures in respect of any Satellite Project allocated by Borrower to this clause (c)) in an

 

118


amount not to exceed $350,000,000 in any Fiscal Year; provided that, (x) if at the end of the applicable Fiscal Year, Capital Expenditures made pursuant to this clause (c) are less than $350,000,000 in the aggregate in such Fiscal Year, then the amount by which $350,000,000 exceeds the Capital Expenditures made in such Fiscal Year pursuant to this clause (c) may be carried forward and included in the aggregate amount of Capital Expenditures permitted to be made in succeeding Fiscal Years pursuant to this clause (c) (including the application of any carry-forward permitted by this subclause (x)) and (y) in no event shall Capital Expenditures made pursuant to this clause (c) exceed $400,000,000 in any Fiscal Year; and

(d)    Capital Expenditures made using the Available Basket Amount (including, for the avoidance of doubt, Capital Expenditures in respect of any Satellite Project allocated by Borrower to this clause (d)).

For purposes of this Section 6.17, (i) expenditures by Borrower or the Restricted Subsidiaries with respect to Customer Equipment, capitalized software costs and capitalized subscriber acquisition costs shall not be deemed to be Capital Expenditures, (ii) Capital Expenditures to be used for or in relation to more than one Satellite Project shall not be double-counted and may be allocated by Borrower in whole or in part to any applicable Satellite Project and (iii) in the event that Satellite Project Capex relates to or is used in connection with more than one Satellite or Satellite Project (including with respect to the Existing Satellite Systems), Satellite Project Capex allocated by Borrower to one Satellite Project for purposes of this Section 6.17 shall not count towards any other Satellite Project.

Section 6.18    6.18 Amendments to Subordinated Obligations. Amend or modify any term or provision of any indenture, agreement or instrument evidencing or governing any Subordinated Obligation in any respect that will or may have a Material Adverse Effect, in each case, other than in connection with a refinancing, renewal, exchange or extension of any such Subordinated Obligation to the extent permitted by Section 6.10(f).

Section 6.19    6.19 Changes in Name, Location of Chief Executive Offices, Etc. Without providing notification to the Agent make any change in the corporate name of Borrower, or without providing ten (10) calendar days prior written notice to the Agent, make any change in the location of Borrower’s principal place of business or chief executive office.

Section 6.20    Hedging AgreementsHedging Agreements. Enter into any Hedging Agreement, except (a) non-speculative Hedging Agreements entered into to hedge or mitigate risks to which Borrower or any Restricted Subsidiary has actual or anticipated exposure (other than those in respect of Equity Interests of Borrower or any of its Restricted Subsidiaries), and (b) non-speculative Hedging Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Borrower or any Restricted Subsidiary.

Section 6.21    6.21 ECA Borrower Equity Interests. From and after repayment in full of a Permitted ECA Financing of an ECA Borrower (other than any such repayment that is in connection with a refinancing of such Permitted ECA Financing) that was incurred under Section 6.10(m)(i) or 6.10(m)(ii) and so long as such ECA Borrower is not at such time party to any other

 

119


Permitted ECA Financing or, in the case of any ECA Borrower that is a Foreign Subsidiary, any other Indebtedness that is permitted hereunder that is secured by a pledge of the Equity Interest of such ECA Borrower, pledge the Equity Interests of such ECA Borrower in favor of any Person other than Agent for the benefit of the Secured Parties (it being understood that this Section 6.21 shall not constitute a requirement that the Equity Interests of any ECA Borrower be pledged in favor of Agent for the benefit of the Secured Parties); provided that if such Equity Interests are pledged in favor of Agent for the benefit of the Secured Parties, such Equity Interests may also be pledged for the benefit of holders of any other Indebtedness secured by Liens on the Collateral on a pari passu basis with, or junior basis to, the Secured Obligations (so long such Indebtedness is subject to an applicable Intercreditor Agreement).

ARTICLE 7

INFORMATION AND REPORTING REQUIREMENTS

Section 7.1    7.1 Financial and Business Information. So long as any Advance remains unpaid, any Letter of Credit is outstanding or any other Obligation remains unpaid (other than contingent indemnification obligations for which no claim has been made), or any portion of any Commitments remains in force, Borrower shall, at Borrower’s sole expense, deliver to the Agent for distribution by it to the Lenders:

(a)    As soon as practicable, and in any event within 45 days after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any Fiscal Year), the consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated statements of operations and cash flows for such Fiscal Quarter and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a backlog report of Borrower and its Subsidiaries, all in reasonable detail. Such financial statements shall be certified by the chief financial officer of Borrower or his or her designated representative as fairly presenting in all material respects the consolidated financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments;

(b)    As soon as practicable, and in any event before the commencement of a Pricing Period, a Pricing Certificate for such Pricing Period setting forth a calculation of the Total Leverage Ratio as of the last day of the Fiscal Quarter immediately prior to such Pricing Period, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth Fiscal Quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Total Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;

(c)    As soon as practicable, and in any event within 90 days after the end of each Fiscal Year, (i) the consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated statements of operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, together with a backlog report of Borrower and its Subsidiaries, all in reasonable detail, (ii) supplements to Schedule A to

 

120


the Borrower Security Agreement and any Subsidiary Security Agreement to reflect any new deposit accounts and securities accounts included in the Collateral and to remove deposit accounts and securities accounts no longer included in the Collateral, supplements to Schedule B to the Borrower Security Agreement and any Subsidiary Security Agreement to reflect the publication or registration of new Copyrights or applications thereof, new Marks and new Patents (each as defined in the Borrower Security Agreement or Subsidiary Security Agreement, as applicable) and supplements to Schedule A to the Borrower Pledge Agreement and any Subsidiary Pledge Agreement to reflect any new pledged Equity Interests included in the Collateral and to remove any pledged Equity Interests no longer included in the Collateral, and (iii) worksheets or other calculations used by Borrower in determining whether or not Significant Subsidiaries exist as of the Determination Date occurring as of the end of such Fiscal Year. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing selected by Borrower, which report shall be prepared in accordance with GAAP as at such date, and shall not be subject to any qualifications or exceptions as to the scope of the audit nor to a “going concern” or like qualification (except as may be required as a result of the impending maturity of any of the Loans);

(d)    As soon as practicable, and in any event within 120 days after the end of each Fiscal Year, a budget and projections for the then-current Fiscal Year in reasonable detail substantially consistent with the budget and projections provided to the Agent on the Closing Date (except that such budget and projections shall be prepared for such Fiscal Year as a whole and not by Fiscal Quarter);

(e)    Promptly after request by the Agent or any Lender, copies of any detailed audit reports by independent accountants in connection with the accounts or books of Borrower or any of its Restricted Subsidiaries, or any audit of any of them;

(f)    Promptly, and in any event within five (5) Banking Days after receipt thereof by Borrower or any Restricted Subsidiary thereof, copies of each material notice or other material correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of Borrower or any Restricted Subsidiary thereof;

(g)    Promptly after request by the Agent or any Lender, copies of any other report or other document that was filed by Borrower with any Governmental Agency, but excluding such reports or documents as are filed with any Governmental Agency as part of Borrower’s ordinary course transactions with any Governmental Agency;

(h)    Promptly upon a Senior Officer becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or; (ii) the occurrence of any ERISA Event with respect to a Plan sponsored by a Loan Party that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (iii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any

 

121


Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto;

(i)    As soon as practicable, and in any event within five (5) Banking Days after a Senior Officer becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than five (5) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;

(j)    Commencing with the financial statements for the Fiscal Quarter ending June 30, 2016, at such times as Unrestricted Subsidiaries are included in consolidated financial statements referred to in Sections 7.1(a) and 7.1(c) above, simultaneously with the delivery of each set of such consolidated financial statements, internally-prepared condensed consolidating financial information reflecting the adjustments necessary to eliminate the accounts of the Unrestricted Subsidiaries (if any) from such consolidated financial statements, in a form reasonably acceptable to the Agent; and

(k)    Such other data and information as from time to time may be reasonably requested by the Agent, any Lender (through the Agent) or the Requisite Lenders, to the extent reasonably available to Borrower.

Section 7.2    7.2 [Reserved]..

Section 7.3    Compliance CertificatesCompliance Certificates. Borrower shall, at Borrower’s sole expense, deliver to the Agent for distribution by it to the Lenders concurrently with the financial statements required pursuant to Sections 7.1(a) and 7.1(c), a Compliance Certificate signed by a Senior Officer or his or her designated representative.

Section 7.4    7.4 Electronic Communications; Platform..

(a)    Reports required to be delivered pursuant to Sections 7.1(a) and 7.1(c) may be delivered electronically and if so, shall be deemed to have been delivered on the date on which Borrower posts such reports, or provides a link thereto, when such report is posted electronically on DebtDomain, SyndTrak, IntraLinks, DebtX or such other similar electronic platform (the “Platform”) as the Agent may select, the SEC’s EDGAR database, or other relevant website that each Lender and the Agent have access to (whether a commercial, third-party website or whether sponsored by the Agent), if any, on Borrower’s behalf; provided, that: (a) Borrower shall deliver paper copies of such reports to the Agent or any Lender who requests Borrower to deliver such paper copies until written request to cease delivering paper copies is given by the Agent or such Lender; (b) Borrower shall notify (which may be by facsimile or electronic mail) the Agent and each Lender of the posting of any such reports and immediately following such notification Borrower shall provide to the Agent, by electronic mail, electronic versions (i.e., soft copies) of such reports; and (c) in each instance Borrower shall provide paper copies of the Compliance Certificates required by Section 7.2 to the Agent. Except for such Compliance Certificates, the

 

122


Agent shall have no obligation to request the delivery of or to maintain copies of the reports referred to above, and in any event shall have no responsibility to monitor compliance by Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such reports.

(b)    Unless the Agent otherwise prescribes, (i) notices and other communications sent to an electronic mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return electronic mail address or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its electronic mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

(c)    Borrower hereby acknowledges that (A) the Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the Issuing Lender materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on the Platform and (B) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Borrower hereby agrees that so long as Borrower is the issuer of any outstanding debt or Equity Interests that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of Borrower Materials that may be distributed to the Public Lenders and that (1) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (2) by marking Borrower Materials “PUBLIC,” Borrower shall be deemed to have authorized the Agent, any Affiliate thereof, the Arrangers, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to Borrower or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute confidential information, they shall be treated as set forth in Section 11.14); (3) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (4) the Agent and any Affiliate thereof and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”

(d)    THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED

 

123


OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to Borrower, any Lender, the L/C IssuerIssuing Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s, any Subsidiary’s or the Agent’s transmission of Borrower Materials through the Internet.

ARTICLE 8

CONDITIONS

Section 8.1    8.1 Initial Credit Issuance. The obligation of each Lender to make the initial Credit Issuance, on the terms and conditions set forth herein, is subject to the following conditions precedent, each of which shall be satisfied prior to the making of the initial Advances (unless all of the Lenders, in their sole and absolute discretion, shall agree otherwise):

(a)    The Agent shall have received all of the following, each (other than the documents referred to in clauses (5), (7) and (9) below) properly executed by a Responsible Official of each party thereto, each dated as of the Closing Date and each in form and substance satisfactory to the Agent and its legal counsel (unless otherwise specified or, in the case of the date of any of the following, unless the Agent otherwise agrees or directs):