8-K
VIASAT INC false 0000797721 0000797721 2024-03-28 2024-03-28

 

 

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): March 28, 2024

 

 

 

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 March 28, 2024, Connect Midco Limited (“Holdings”), Connect Bidco Limited (“Bidco”), Connect Finco SARL (“Lux Finco”), Connect U.S. Finco LLC (“US Finco”) and certain other subsidiary loan parties (collectively, with Holdings, Bidco, Lux Finco and US Finco, “Inmarsat,” and all indirect wholly owned subsidiaries of Viasat, Inc. (“Viasat”)) entered into Amendment No. 4 to Credit Agreement with Barclays Bank plc, as existing administrative agent and collateral agent, Bank of America, N.A., as successor administrative agent and collateral agent, and the lenders and issuing banks party thereto (the “Refinancing Amendment”) to amend the existing Credit Agreement, dated December 12, 2019, among Holdings, Bidco, Lux Finco, US Finco, certain subsidiaries of Bidco, Barclays Bank plc, as administrative agent and collateral agent, and the lenders and issuing banks party thereto (the “Existing Credit Agreement”), under which the existing $700 million revolving credit facility maturing in December 2024 and a majority of the existing $1.75 billion term loan facility maturing in December 2026 (the “2026 TLB Facility”) under the Existing Credit Agreement were replaced with a new $550 million (undrawn) revolving credit facility that matures in March 2027 (or (i) if more than $100 million of borrowings under the 2026 TLB Facility remains outstanding on the date that is 91 days prior to the maturity of the 2026 TLB Facility, such date or (ii) if more than $100 million of Inmarsat’s existing 6.750% senior secured notes due 2026 (the “Inmarsat 2026 Notes”) remains outstanding on the date that is 91 days prior to the maturity of the Inmarsat 2026 Notes, such date) and a new $1.3 billion term loan facility that was fully drawn at closing and matures in September 2029. Proceeds from the new term loan facility, together with cash on hand, were used to repay approximately $1,384 million of the approximately $1,684 million of outstanding borrowings under the 2026 TLB Facility, resulting in $300 million in principal amount of term loan borrowings remaining outstanding under the 2026 TLB Facility at closing.

Under the Existing Credit Agreement, as amended by the Refinancing Amendment (as so amended, the “Amended Credit Agreement”), borrowings under the new term loan facility are required to be repaid in quarterly installments of $3.25 million, followed by a final installment on the maturity date thereof. As a result of certain voluntary prepayments made in respect of the 2026 TLB Facility at the closing of the Refinancing Amendment, all quarterly amortization installments with respect to the 2026 TLB Facility have been reduced to $0, with the only remaining scheduled principal repayment being a final installment of $300 million on the maturity date of the 2026 TLB Facility in December 2026.

Borrowings under the Amended Credit Agreement, (1) in the case of borrowings denominated in U.S. Dollars, bear interest, at Inmarsat’s option, at either (i) the highest of (x) the greater of the federal funds rate or the overnight banking fund rate for such day plus 0.50%, (y) the forward-looking one-month term SOFR rate plus 1.00% or (z) the administrative agent’s prime rate as announced from time to time, or (ii) the forward-looking term SOFR rate for the applicable interest period (subject to, in the case of the new term loan facility, a floor of 0.50% per annum, in the case of the new revolving credit facility, a floor of 0.00% per annum and, in the case of the 2026 TLB Facility, a floor of 1.00% per annum), and (2) in the case of borrowings denominated in available currencies other than U.S. Dollars, bear interest based upon the applicable benchmark for such currencies as described in the Amended Credit Agreement, plus, in all cases, an applicable margin. The applicable margin for the 2026 TLB Facility remains at 2.50% per annum for base rate loans and 3.50% per annum for SOFR loans and the applicable margin for the new term loan facility is 3.50% per annum for base rate loans and 4.50% per annum for SOFR loans. The applicable margin for borrowings under the new revolving credit facility ranges between 1.50% and 2.25% per annum (in the case of base rate loans) and 2.50% and 3.25% per annum (in the case of SOFR loans), in each case, based on Inmarsat’s total net leverage ratio.

The Amended Credit Agreement contains covenants that restrict, among other things, Inmarsat’s ability to incur additional debt, grant liens, sell assets, make investments and acquisitions, pay dividends and make certain other restricted payments. In addition, the Amended Credit Agreement contains a total net leverage ratio financial covenant and an interest coverage ratio financial covenant, each of which apply solely to the new revolving credit facility (unless the

 


obligations under the new revolving credit facility have been accelerated). The Amended 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 Amended Credit Agreement immediately due and payable, and may terminate commitments to make any additional advances thereunder.

Certain of the lenders under the Amended 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 Refinancing Amendment contained herein does not purport to be complete and is qualified in its entirety by reference to the complete text of the Refinancing 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    Amendment No. 4 to Credit Agreement, dated as of March 28, 2024 by and among Connect Finco SARL, Connect U.S. Finco LLC, the subsidiary loan parties party thereto, Barclays Bank PLC, as existing administrative agent and collateral agent, Bank of America, N.A., as successor administrative agent and collateral agent, and the 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.

 

    VIASAT, INC.
Date: March 28, 2024     By:  

/s/ Brett Church

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

Exhibit 10.1

Execution Version

AMENDMENT NO. 4

This AMENDMENT NO. 4 (this “Amendment”), dated as March 28, 2024, to the Credit Agreement, dated as of December 12, 2019 (as amended by Amendment No. 1, dated as of January 25, 2021, Amendment No. 2, dated as of December 17, 2021, Amendment No. 3, dated as of December 2, 2022, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”), among Connect Midco Limited (f/k/a Triton Midco (Guernsey) Limited), a private limited liability company incorporated under the laws of Guernsey with company number 66186 (“Initial Holdings”), Connect Bidco Limited (f/k/a Triton Bidco (Guernsey) Limited), a private limited liability company incorporated under the laws of Guernsey with company number 66187 (“Bidco”), Connect Finco SARL (f/k/a Triton Finco SARL), a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 6, rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of Luxembourg, and registered with the Luxembourg Trade and Companies Register (R.C.S. Luxembourg) under number B233109 (the “Finco Borrower”), as a Revolving Borrower and a Term Borrower, Connect U.S. Finco LLC, a Delaware limited liability company (the “U.S. Borrower”), as a Revolving Borrower and a Term Borrower (the U.S. Borrower, in its capacity as a term borrower, together with the Finco Borrower, the “Term Borrowers” and, the U.S. Borrower in its capacity as a revolving borrower, together with the Finco Borrower and any Additional Borrowers from time to time party thereto, the “Revolving Borrowers” and, collectively with the Term Borrowers, the “Borrowers”), the lenders and issuing banks party thereto and (prior to the Successor Agent Appointment Date (as defined below)) Barclays Bank PLC (“Barclays”) or (from and after the Successor Agent Appointment Date) Bank of America, N.A. (“BofA”), as Administrative Agent and Collateral Agent, is made and entered into by and among Initial Holdings, Bidco, the Borrowers, the other Subsidiary Loan Parties, each of the entities listed as an “Extending Term Lender” on the signature pages hereto (each, an “Extending Term Lender” and, collectively, the “Extending Term Lenders”), each of the entities listed as a “Refinancing Term Lender” on the signature pages hereto (each, a “Refinancing Term Lender” and, collectively, the “Refinancing Term Lenders”), each of the entities listed as a “Refinancing Revolving Lender” on the signature pages hereto (each, a “Refinancing Revolving Lender” and, collectively, the “Refinancing Revolving Lenders”; the Refinancing Term Lenders and the Refinancing Revolving Lenders, collectively, the “Refinancing Lenders” and, each, a “Refinancing Lender”), the Issuing Banks party hereto, Barclays, as Existing Agent (as defined below), and BofA, as Successor Agent (as defined below).

RECITALS:

WHEREAS, the Borrower Representative has requested that (a) pursuant to Section 2.23 of the Credit Agreement, Lenders with outstanding Amendment No. 1 Refinancing Term Loans, among other things, extend the maturity date applicable to their Amendment No. 1 Refinancing Term Loans, (b) immediately after giving effect to the Term Loan Maturity Date Extension (as defined below), pursuant to Section 2.20 of the Credit Agreement, the Refinancing Term Lenders make term loans in an aggregate principal amount of $633,994,802.66 (the “Refinancing Term Loans”), (c) pursuant to Section 2.20 of the Credit Agreement, the Refinancing Revolving Lenders provide revolving commitments in an aggregate amount of $550,000,000 (the “Refinancing Revolving Commitments”) and (d) pursuant to Section 9.02 of the Credit Agreement, the Credit Agreement be amended in the manner provided herein (as so amended, the “Amended Credit Agreement”);

WHEREAS, the Term Borrowers intend to use the proceeds of the Refinancing Term Loans on the Amendment No. 4 Effective Date (as defined below) to repay all or a portion of the Amendment No. 1 Refinancing Term Loans outstanding under the Amended Credit Agreement immediately after giving effect to the Term Loan Maturity Date Extension; and


WHEREAS, on the Amendment No. 4 Effective Date, (a) the Extending Term Lenders are willing to, among other things, extend the maturity date applicable to their Amendment No. 1 Refinancing Term Loans, (b) the Refinancing Term Lenders are willing to provide the Refinancing Term Loans to the Term Borrowers, (c) the Refinancing Revolving Lenders are willing to provide the Refinancing Revolving Commitments to the Revolving Borrowers and (d) the parties hereto wish to amend the Credit Agreement, in each case, on the terms and subject to the conditions set forth herein and in the Credit Agreement.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Defined Terms; Interpretation; Etc. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. This Amendment is a “Loan Modification Agreement”, a “Permitted Amendment”, a “Refinancing Amendment” and a “Loan Document” for the purposes of (and as such terms are defined in) the Credit Agreement and the other Loan Documents. Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “therein”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Amended Credit Agreement.

SECTION 2. Extended Term Loans and Refinancing Term Loans.

(a) On the Amendment No. 4 Effective Date, pursuant to Section 2.23 of the Credit Agreement, the Amendment No. 1 Refinancing Term Loans of each Extending Term Lender on the Amendment No. 4 Effective Date shall be converted into Amendment No. 4 Term Loans (as defined in the Amended Credit Agreement) (on a dollar-for-dollar basis) (such Amendment No. 1 Refinancing Term Loans, as so converted, the “Extended Term Loans” and such conversion, the “Term Loan Maturity Date Extension”), and thereafter shall cease to constitute Amendment No. 1 Refinancing Term Loans.

(b) Each Refinancing Term Lender hereby agrees, severally and not jointly, to make a Refinancing Term Loan to the Term Borrowers on the Amendment No. 4 Effective Date in an aggregate principal amount equal to the amount set forth opposite such Refinancing Term Lender’s name on Schedule I attached hereto, on the terms set forth herein and in the Amended Credit Agreement, and subject to the conditions set forth in Section 6 below. The Refinancing Term Loans shall be “Other Term Loans” as contemplated by Section 2.20 of the Credit Agreement.

(c) The Refinancing Term Loans shall be made as a single Borrowing and funded to the Term Borrowers at par (without the netting of any discount to the principal amount thereof) on the Amendment No. 4 Effective Date. The Term Borrowers shall use the proceeds of the Refinancing Term Loans to refinance all or a portion of the Amendment No. 1 Refinancing Term Loans outstanding under the Amended Credit Agreement immediately after giving effect to the Term Loan Maturity Date Extension. Unless previously terminated, the commitments of the Refinancing Term Lenders hereunder shall terminate upon the making of the Refinancing Term Loans on the Amendment No. 4 Effective Date.

(d) The Extended Term Loans and the Refinancing Term Loans, collectively, shall constitute a single Class of Term Loans and shall be “Amendment No. 4 Term Loans” and “Term Loans” (in each case, as defined in the Amended Credit Agreement), in each case, for all purposes of the Amended Credit Agreement and the other Loan Documents, having terms and provisions identical to those applicable to the Amendment No. 1 Refinancing Term Loans, except as otherwise set forth in this Amendment and the Amended Credit Agreement; provided that, for the avoidance of doubt, the Extended Term Loans and the Refinancing Terms Loans, collectively, shall not constitute Amendment No. 1 Refinancing Term Loans.

 

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(e) The Extending Term Lenders, the Refinancing Term Lenders and the Borrowers hereby agree, and select, an initial Interest Period with respect to the Extended Term Loans and the Refinancing Term Loans, collectively, commencing on the Amendment No. 4 Effective Date and ending on April 30, 2024.

SECTION 3. Refinancing Revolving Commitments.

(a) Each Refinancing Revolving Lender hereby agrees, severally and not jointly, to provide the Refinancing Revolving Commitments to the Revolving Borrowers on the Amendment No. 4 Effective Date in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I attached hereto, on the terms set forth herein and in the Amended Credit Agreement, and subject to the conditions set forth in Section 6 below.

(b) The Refinancing Revolving Commitments shall be “Other Revolving Commitments” (and any Revolving Loans made thereunder shall be “Other Revolving Loans”) as contemplated by Section 2.20 of the Credit Agreement.

SECTION 4. Lender Agreements. Each Refinancing Lender:

(a) confirms that a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and provide a Refinancing Term Loan or a Refinancing Revolving Commitment, as applicable, have been made available to it;

(b) agrees that it will, independently and without reliance upon the Administrative Agent, any Joint Lead Arranger or any other Lender or agent, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement or the other Loan Documents, including this Amendment;

(c) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent and the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto;

(d) acknowledges and agrees that upon the Amendment No. 4 Effective Date it shall be (i) a “Lender”, (ii) in the case of the Refinancing Term Lenders, an “Additional Term Lender” and a “Term Lender” and (iii) in the case of the Refinancing Revolving Lenders, an “Additional Revolving Lender” and a “Revolving 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”, an “Additional Term Lender”, a “Term Lender”, an “Additional Revolving Lender” and a “Revolving Lender”, as applicable, thereunder; and

(e) agrees to deliver to the Administrative Agent and the Borrowers such forms, certificates or other evidence with respect to tax withholding matters as it may be required to deliver to the Administrative Agent and the Borrowers pursuant to Section 2.16(e) of the Credit Agreement.

 

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SECTION 5. Amendments. The parties hereto agree that, subject to the satisfaction (or waiver) of the conditions set forth in Section 6 below, on the Amendment No. 4 Effective Date:

(a) the Credit Agreement shall be 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: added double-underlined text) as set forth in the pages of the document attached as Exhibit A hereto;

(b) Exhibit A to the Credit Agreement shall be amended and restated as set forth in Exhibit B hereto; and

(c) Exhibit T to the Credit Agreement shall be amended and restated as set forth in Exhibit C hereto;

provided, that, to the extent necessary to effectuate such amendments, any amendments which relate to the resignation of Barclays as Existing Agent or the appointment of BofA as Successor Agent or which otherwise require the consent of the Required Lenders shall become effective on the Amendment No. 4 Effective Date immediately after giving effect to the effectiveness of this Amendment, the making of the Refinancing Term Loans (and the substantially concurrent prepayment of Amendment No. 1 Refinancing Term Loans) and the effectiveness of the Refinancing Revolving Commitments, in each case, on the Amendment No. 4 Effective Date.

SECTION 6. Conditions to Effectiveness. This Amendment (other than this Section 6, which shall become effective on the date hereof), each Refinancing Term Lender’s obligation to provide the Refinancing Term Loans, each Refinancing Revolving Lender’s obligation to provide the Refinancing Revolving Commitments and each party’s consent to the amendments contemplated herein to the Credit Agreement shall become effective as of the date on which the following conditions are satisfied or waived (such time, the “Amendment No. 4 Effective Date”):

(a) The Administrative Agent (or its counsel) shall have received from Initial Holdings, Bidco, each Borrower, each other Subsidiary Loan Party, each Extending Term Lender, each Refinancing Term Lender, each Refinancing Revolving Lender, each Issuing Bank, the Existing Agent and the Successor Agent either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Amendment) that such party has signed a counterpart of this Amendment;

(b) The Administrative Agent (or its counsel) shall have received a certificate of Bidco dated as of the Amendment No. 4 Effective Date, as to the matters set forth in paragraphs (e) and (f) of this Section and executed by any Responsible Officer of Bidco.

(c) The Administrative Agent (or its counsel) shall have received a certificate of each of Initial Holdings, Bidco, each Borrower and each other relevant Loan Party, dated as of the Amendment No. 4 Effective Date, substantially in the form delivered to the Administrative Agent on the Effective Date or otherwise in form and substance reasonably satisfactory to the Administrative Agent, executed by any Responsible Officer of such party and including or attaching the documents or certifications, as applicable, referred to in paragraph (d) of this Section.

(d) The Administrative Agent (or its counsel) shall have received a copy of (i) each Organizational Document of each Loan Party (or a written certification that such party’s Organizational Documents as most recently delivered to the Administrative Agent prior to the Amendment No. 4 Effective Date remain in full force and effect without modification or amendment since such delivery), (ii) signature

 

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and (as applicable) incumbency certificates of the Responsible Officers of each Loan Party executing the Amendment and any other document referred to in paragraph (a) of Section 7 below, as applicable (or a written certification that such party’s signature and incumbency certificates as most recently delivered to the Administrative Agent prior to the Amendment No. 4 Effective Date remain true and correct), (iii) resolutions of the board of directors or managers, shareholders, partners, and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Amendment and any other document referred to in paragraph (a) of Section 7 below, as applicable, and (iv) with respect to the Finco Borrower, (A) an excerpt (extrait) from the Luxembourg Trade and Companies Register dated as of the Amendment No. 4 Effective Date, (B) a certificate of non-inscription of a judicial decision or an administrative dissolution without liquidation (certificat de non-inscription d’une décision judiciaire ou de dissolution administrative sans liquidation) from the Luxembourg Insolvency Register (Registre de l’Insolvabilité, Reginsol) held and maintained by the Luxembourg Trade and Companies Register dated as of the Amendment No. 4 Effective Date, (C) a confirmation that borrowing or guaranteeing or securing (as appropriate) the Commitments under the Amended Credit Agreement would not cause any borrowing, guarantee, security or other similar limit binding on the Finco Borrower to be exceeded, and (D) a confirmation that each copy document relating to the Finco Borrower specified in this paragraph (e) is correct, complete and (to the extent executed) in full force and effect without amendment or modification prior to the Amendment No. 4 Effective Date.

(e) The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the Amendment No. 4 Effective Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the Amendment No. 4 Effective Date or on such earlier date, as the case may be.

(f) At the time of and immediately after giving effect to the Refinancing Term Loans and the Refinancing Revolving Commitments, no Default or Event of Default shall have occurred and be continuing.

(g) The Administrative Agent and the Joint Lead Arrangers shall have received, at least one (1) Business Day prior to the Amendment No. 4 Effective Date, all documentation and other information about the Borrowers as has been reasonably requested in writing at least three (3) Business Days prior to the Amendment No. 4 Effective Date by the Administrative Agent or the Joint Lead Arrangers that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.

(h) The Administrative Agent shall have received a Borrowing Request with respect to the Refinancing Term Loans not later than 12:00 p.m. noon, New York City time, one (1) Business Day before the Amendment No. 4 Effective Date and otherwise in accordance with the requirements of Section 2.03 of the Credit Agreement.

(i) The Administrative Agent or the Joint Lead Arrangers, as applicable, shall have received all fees and reasonable, documented and invoiced out-of-pocket expenses previously agreed in writing by the Administrative Agent or the Joint Lead Arrangers, as applicable, and the Borrowers to be due and payable on the Amendment No. 4 Effective Date to the extent invoiced at least one (1) Business Day prior to the Amendment No. 4 Effective Date.

 

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(j) The Borrowers shall have paid to the Administrative Agent for the ratable account of the Lenders holding Amendment No. 1 Refinancing Term Loans all accrued and unpaid interest on such Amendment No. 1 Refinancing Term Loans to, but not including, the Amendment No. 4 Effective Date.

(k) (i) All Revolving Commitments shall have been terminated, (ii) all outstanding Revolving Loans, together with accrued and unpaid interest thereon, shall have been paid in full in cash, (iii) all outstanding Letters of Credit shall have been terminated (other than Letters of Credit that have been cash collateralized or backstopped in an amount, by an institution and otherwise pursuant to arrangements reasonably satisfactory to the applicable Issuing Bank) and (iv) all accrued and unpaid fees and all reimbursable expenses and other non-contingent Loan Document Obligations with respect to the Revolving Facility due as of the Amendment No. 4 Effective Date, together with accrued and unpaid interest (if any) thereon, shall have been paid in full in cash.

(l) The Amendment No. 1 Refinancing Term Loans shall have been prepaid such that, immediately after giving effect to the Term Loan Maturity Date Extension and the prepayment of Amendment No. 1 Refinancing Term Loans on the Amendment No. 4 Effective Date, the aggregate principal amount of the Amendment No. 1 Refinancing Term Loans outstanding on the Amendment No. 4 Effective Date shall not exceed $300,000,000.

The Administrative Agent shall notify Initial Holdings, Bidco, the Borrowers and the Lenders of the Amendment No. 4 Effective Date, and such notice shall be conclusive and binding.

SECTION 7. Conditions Subsequent. Each of the parties hereto agree that on the Amendment No. 4 Effective Date, immediately after giving effect to the effectiveness of this Amendment, each of the following conditions will be satisfied unless waived by the Required Lenders:

(a) The Administrative Agent (or its counsel) shall have received an executed copy of the following Security Documents: (A) an English law governed supplemental deed between Bidco as chargor and Bank of America, N.A. as collateral agent to the English law governed second ranking assignment agreement dated 1 May 2020 made between Bidco as chargor and Barclays Bank plc as collateral agent in connection with the Intra-Group Debt Documents (as defined therein), (B) an English law governed supplemental deed between Finco Borrower as chargor, Bidco as bidco and Bank of America, N.A. as collateral agent to the English law governed assignment agreement dated 1 May 2020 made between Finco Borrower as chargor, Bidco as bidco and Barclays Bank plc as collateral agent in connection with the English law governed assignment agreement dated 1 May 2020 made between Bidco as chargor and Finco Borrower as chargee in connection with the Intra-Group Debt Documents (as defined therein), (C) an English law governed supplemental deed between Inmarsat New Ventures Limited, Inmarsat Global Limited, Inmarsat Group Holdings Limited and Inmarsat Solutions AS as chargors and Bank of America, N.A. as collateral agent to the English law governed debenture dated 18 February 2020 originally between Inmarsat New Ventures Limited and Inmarsat Global Limited as initial chargors and Barclays Bank plc as collateral agent as acceded to by a security accession deed dated 1 May 2020 between Inmarsat Group Holdings Limited and Inmarsat Solutions AS as new chargors, Inmarsat Global Limited as company and Barclays Bank plc as collateral agent in each case, in connection with the Charged Property (as defined therein), (D) an English law governed supplemental deed between Bidco as chargor and Bank of America, N.A. as collateral agent to the English law governed second ranking charge over bank accounts dated 12 December 2019 between Bidco as chargor and Barclays Bank plc as collateral agent in connection with the Bank Accounts (as defined therein), (E) an English law governed supplemental deed between Bidco as chargor and Bank of America, N.A. as collateral agent to the English law governed second ranking share charge dated 12 December 2019 between Bidco as chargor and Barclays Bank plc as collateral agent in connection with the Shares (as defined therein), (F) an English law governed supplemental deed between Finco Borrower as chargor, Bidco as bidco and Bank of America, N.A. as collateral agent to the English

 

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law governed assignment agreement dated 12 December 2019 between Finco Borrower as chargor, Bidco as bidco and Barclays Bank plc as collateral agent in connection with the English law governed share charge dated 12 December 2019 made between Bidco as chargor and Finco Borrower as chargee in connection with the Target Shares (as defined therein) and (G) an English law governed supplemental deed between Finco Borrower as chargor, Bidco as bidco and Bank of America, N.A. as collateral agent to the English law governed assignment agreement dated 12 December 2019 between Finco Borrower as chargor, Bidco as bidco and Barclays Bank plc as collateral agent in connection with the English law governed assignment agreement dated 12 December 2019 made between Bidco as chargor and Finco Borrower as chargee in connection with the Intra-Group Debt Documents (as defined therein); and

(b) a Luxembourg law governed master security assignment, and transfer and confirmation agreement with respect to the Initial Luxembourg Collateral Agreement (including, amongst others, the amended and restated Initial Luxembourg Collateral Agreement reflecting the change of Collateral Agent; and

(c) The Administrative Agent (or its counsel) shall have received a written opinion (addressed to the Administrative Agent, the Extending Term Lenders, the Refinancing Term Lenders, the Refinancing Revolving Lenders, the Swingline Lender and the Issuing Banks and dated as of the Amendment No. 4 Effective Date) of each of (i) Carey Olsen (Guernsey) LLP, as Guernsey law counsel to the Administrative Agent (with respect to enforceability), (ii) Ogier, as Guernsey law counsel to the Finco Borrower (with respect to capacity), (iii) Ogier (LUXEMBOURG) SCS, as Luxembourg law counsel to the Finco Borrower (with respect to capacity), (iv) NautaDutilh Avocats Luxembourg S.à r.l., as Luxembourg law counsel to the Administrative Agent (with respect to enforceability), (v) Advokatfirmaet Thommessen AS, as Norwegian law counsel to the Administrative Agent, (vi) Latham & Watkins LLP, as counsel to Initial Holdings, Bidco and the Borrowers with respect to certain matters of New York and Delaware law and (vii) Milbank LLP, as English law counsel to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent. Each applicable party hereby requests such counsel deliver such opinion.

SECTION 8. Resignation and Appointment of Administrative Agent, Collateral Agent, Issuing Bank and Swingline Lender. As of the Amendment No. 4 Effective Date, immediately after giving effect to the effectiveness of this Amendment, the making of the Refinancing Term Loans (and the substantially concurrent prepayment of Amendment No. 1 Refinancing Term Loans) and the effectiveness of the Refinancing Revolving Commitments:

(a) Barclays hereby provides notice to the Lenders, the Issuing Banks, Bidco and the Borrowers of its intention to resign as Administrative Agent, Collateral Agent, Issuing Bank and Swingline Lender effective as of the Successor Agent Appointment Date (as defined below) (Barclays, in its capacities as Administrative Agent, Collateral Agent, Issuing Bank and Swingline Lender, the “Existing Agent”). Bidco, the Borrowers and the Lenders party hereto (together constituting the Required Lenders) hereby (i) acknowledge the resignation by Barclays as the Existing Agent effective as of the Successor Agent Appointment Date, (ii) consent to this Amendment being deemed as the notice of resignation by Barclays required pursuant to Section 8.06 of the Credit Agreement as of the Successor Agent Appointment Date and (iii) waive any applicable notice periods required pursuant to the Credit Agreement.

(b) Each Lender party hereto (together constituting the Required Lenders) hereby (i) appoints BofA to act as the successor Administrative Agent and Collateral Agent under the Loan Documents pursuant to Section 8.06 of the Credit Agreement and (ii) acknowledges that BofA shall replace Barclays as an Issuing Bank and as the Swingline Lender under the Loan Documents pursuant to Section 8.06 of the Credit Agreement (BofA, in its capacities as successor Administrative Agent, Collateral Agent, Issuing Bank and Swingline Lender, the “Successor Agent”), in each case, effective as of the Successor Agent

 

7


Appointment Date. As of the Successor Agent Appointment Date, the Successor Agent will accept the appointment to act as successor Administrative Agent, Collateral Agent, Issuing Bank and Swingline Lender under the Loan Documents pursuant to the Successor Agent Agreement (as defined below). The Lenders party hereto, Bidco and the Borrowers each (x) agree that such appointment of the Successor Agent and the acceptance thereof by the Successor Agent are effective under the Loan Documents and binding on each of the parties hereto and such consent is the consent required pursuant to Section 8.06 of the Credit Agreement and (y) waive any applicable notice periods required pursuant to the Credit Agreement. Each of the parties hereto agrees to execute all documents reasonably necessary to evidence the appointment of the Successor Agent as successor Administrative Agent, Collateral Agent, Issuing Bank and Swingline Lender.

(c) The Lenders party hereto acknowledge that the documentation reflecting the definitive resignation of Barclays as Existing Agent and BofA’s appointment as Successor Agent in such capacities will be reflected in an agency transfer agreement (or similar document) (the “Successor Agent Agreement”) to be negotiated in good faith among Initial Holdings, Bidco, the Borrowers, Barclays and BofA. The effectiveness of Barclays’ resignation as Existing Agent and BofA’s appointment as Successor Agent will be the date of effectiveness of the Successor Agent Agreement (such date, the “Successor Agent Appointment Date”). The Lenders party hereto hereby consent to the execution by Initial Holdings, Bidco, the Borrowers, the other Loan Parties, Barclays, as Existing Agent, and BofA, as Successor Agent, of the Successor Agent Agreement and the effectiveness of the foregoing without the need to obtain the further consent of any Lender. The Lenders party hereto acknowledge and agree that the Successor Agent Agreement may include waivers, amendments or modifications to the Credit Agreement or one or more of the other Loan Documents deemed reasonably necessary or appropriate by Initial Holdings, Bidco, the Borrowers, Barclays and BofA to effectuate the purpose of the Successor Agent Agreement, and the Lenders party hereto consent to such amendments without the need to obtain the further consent of any Lender.

SECTION 9. Reaffirmation of Guarantees and Security Interests and Grant of Security Interests.

(a) As of the Amendment No. 4 Effective Date, each Loan Party hereby acknowledges its receipt of a copy of this Amendment and its review of the terms and conditions hereof and consents to the terms and conditions of this Amendment and the transactions contemplated hereby, including, but not limited to, the Existing Term Loan Maturity Extension and the extensions of credit in the form of the Refinancing Term Loans and the Refinancing Revolving Commitments. As of the Amendment No. 4 Effective Date, each Loan Party hereby (a) affirms and confirms its guarantees, security, pledges, grants and other undertakings under the Amended Credit Agreement and the other Loan Documents, (b) agrees that (i) each Loan Document to which it is a party shall continue to be in full force and effect and (ii) all of its guarantees, security, pledges, grants and other undertakings thereunder shall continue to be in full force and effect and shall extend to the liabilities and obligations under the Loan Documents as amended by this Amendment and shall accrue to the benefit of the Secured Parties, including the Extending Term Lenders, the Refinancing Term Lenders and the Refinancing Revolving Lenders, and (c) acknowledges that from and after the date hereof, the Extended Term Loans, the Refinancing Term Loans and any Revolving Loans made under the Refinancing Revolving Commitments shall be deemed to be, and the outstanding Amendment No. 1 Refinancing Term Loans shall continue to be, Secured Obligations.

(b) As security for the payment or performance in full of the Secured Obligations, each Grantor and Share Pledge Grantor hereby pledges, assigns and grants to the Collateral Agent, on behalf of and for the benefit of the Secured Parties, a security interest in all of its right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising and regardless of where located, all of the Pledged Collateral (limited in the case of Share Pledge Grantors to the Pledged Equity Interests) and any and all accessions to, substitutions for and replacements, products and cash and non-cash proceeds (including Stock Rights) of the foregoing; provided that, in no event shall the Pledged Collateral include or the Security Interest attach to any Excluded Assets.

 

8


(c) As security for the payment or performance, in full of the Secured Obligations, each Grantor hereby pledges, assigns and grants to the Collateral Agent, on behalf of and for the benefit of the Secured Parties, a Security Interest in all of its right, title and interest in, to and under all of the Article 9 Collateral, whether now owned by or owing to, or hereafter acquired by or arising in favor of, such Grantor, and regardless of where located; provided that, in no event shall the Article 9 Collateral include or the Security Interest attach to any Excluded Assets.

(d) Capitalized terms used in clauses (b) and (c) of this Section 9 that are not defined in the Amended Credit Agreement shall have the meanings assigned to such terms in the Collateral Agreement.

(e) The security interests granted in clauses (b) and (c) of this Section 9 in any assets or property shall be automatically released or terminated (without any action of any party hereto) at any time the security interest provided under the Collateral Agreement in such assets or property is released or terminated in accordance with the provisions thereunder and under the Amended Credit Agreement.

SECTION 10. Expenses; Indemnity; Damage Waiver. Sections 9.03(a), (b), (d), (e), (f), (g) and (h) of the Credit Agreement are hereby incorporated, mutatis mutandis, by reference as if such Sections were set forth in full herein and shall apply, mutatis mutandis, to each Joint Lead Arranger, in its capacity as such, as if each reference to the Administrative Agent under the Credit Agreement were a reference to such Joint Lead Arranger hereunder, including, for the avoidance of doubt, liabilities, losses, damages, claims, costs, expenses and disbursements arising out of the arrangement of the Refinancing Revolving Commitments, the arrangement and syndication of the Refinancing Term Loans and the solicitation of the consents to the amendments to the Credit Agreement contemplated herein; provided that, notwithstanding anything else therein, the expense reimbursement provisions of Section 9.03(a) of the Credit Agreement shall only apply as provided hereinabove if the Amendment No. 4 Effective Date occurs.

SECTION 11. Miscellaneous.

(a) Notice. For purposes of the Amended Credit Agreement, the initial notice address of each Refinancing Term Lender and each Refinancing Revolving Lender shall be as set forth below its signature below.

(b) Recordation of the Extended Term Loans, the Refinancing Term Loans and the Refinancing Revolving Commitments. Upon execution and delivery hereof, the Administrative Agent will record in the Register the Extended Term Loans held by the Extending Term Lenders, the Refinancing Term Loans made by the Refinancing Term Lenders and the Refinancing Revolving Commitments of the Refinancing Revolving Lenders.

(c) Prepayment Notice. The parties hereto agree that, notwithstanding anything to the contrary set forth herein or the Credit Agreement, the Borrowers shall be deemed to have delivered (and the Administrative Agent and Lenders party hereto acknowledge receipt of) (i) any notice of prepayment required in connection with the prepayment of Amendment No. 1 Refinancing Term Loans outstanding under the Credit Agreement immediately after the Term Loan Maturity Date Extension and (ii) any notice of prepayment required in connection with the prepayment of the Revolving Loans outstanding under the Credit Agreement immediately prior to the Amendment No. 4 Effective Date.

 

9


(d) Amendment, Modification and Waiver. This Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing signed by each of the parties hereto.

(e) Entire Agreement. This Amendment, the Amended Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

(f) Governing Law. This Amendment shall be construed in accordance with and governed by the laws of the State of New York.

(g) Jurisdiction; Consent to Service of Process; Waiver of Jury Trial. Sections 9.09(b), (c) and (d) and Section 9.10 of the Credit Agreement are hereby incorporated, mutatis mutandis, by reference as if such Sections were set forth in full herein and shall apply, mutatis mutandis, to each party hereto.

(h) Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

(i) Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Any signature to this Amendment may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this Amendment. Each of the parties hereto represents and warrants to the other parties hereto that it has the corporate capacity and authority to execute this Amendment through electronic means and there are no restrictions for doing so in such party’s constitutive documents.

(j) Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

(k) Continued Effectiveness. Notwithstanding anything contained herein, the terms of this Amendment are not intended to and do not serve to effect a novation as to the Credit Agreement. The parties hereto expressly do not intend to extinguish the Credit Agreement. Instead, it is the express intention of the parties hereto to reaffirm the indebtedness created under the Credit Agreement which is secured by the Collateral and the Liens and guarantees thereunder. The Amended Credit Agreement and each of the Loan Documents remain in full force and effect.

[Remainder of this page intentionally left blank]

 

10


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

CONNECT MIDCO LIMITED,

as Initial Holdings

By:  

/s/ Robert James Blair

    Name: Robert James Blair
    Title: Director

CONNECT BIDCO LIMITED,

as Bidco

By:  

/s/ Robert James Blair

    Name: Robert James Blair
    Title: Director

CONNECT FINCO SARL,

as the Finco Borrower and the Borrower Representative

By:  

/s/ Nicholas Mark Watson

    Name: Nicholas Mark Watson
    Title: Director

CONNECT U.S. FINCO LLC,

as the U.S. Borrower

By:  

/s/ Shawn Lynn Duffy

    Name: Shawn Lynn Duffy
    Title: Chief Financial Officer

INMARSAT GLOBAL LIMITED,

as an Additional Borrower

By:  

/s/ Shawn Lynn Duffy

    Name: Shawn Lynn Duffy
    Title: Director

 

[Signature Page to Amendment No. 4]


INMARSAT NEW VENTURES LIMITED,

as a Subsidiary Loan Party

By:  

/s/ Shawn Lynn Duffy

    Name: Shawn Lynn Duffy
    Title: Director

INMARSAT GROUP HOLDINGS INC.,

as a Subsidiary Loan Party

By:  

/s/ Alison Claire Horrocks

    Name: Alison Claire Horrocks
    Title: Treasurer

INMARSAT SOLUTIONS (US) INC.,

as a Subsidiary Loan Party

By:  

/s/ Alison Claire Horrocks

    Name: Alison Claire Horrocks
    Title: Treasurer

INMARSAT INC.,

as a Subsidiary Loan Party

By:  

/s/ Alison Claire Horrocks

    Name: Alison Claire Horrocks
    Title: Treasurer

ISAT US INC.,

as a Subsidiary Loan Party

By:  

/s/ Alison Claire Horrocks

    Name: Alison Claire Horrocks
    Title: Treasurer

 

[Signature Page to Amendment No. 4]


INMARSAT SOLUTIONS AS,

as a Subsidiary Loan Party

By:  

/s/ Alison Claire Cowpe

    Name: Alison Claire Cowpe
    Title: Director

INMARSAT GROUP HOLDINGS LIMITED,

as a Subsidiary Loan Party

By:  

/s/ Shawn Lynn Duffy

    Name: Shawn Lynn Duffy
    Title: Director

 

[Signature Page to Amendment No. 4]


BARCLAYS BANK PLC,

as the Existing Agent

By:  

/s/ Wendar Chen

 

Name: Wendar Chen

 

Title: Vice President


BANK OF AMERICA, N.A.,

as the Successor Agent

By:  

/s/ Henry Pennell

 

Name: Hery Pennell

 

Title: Vice President

[Signature Page to Amendment No. 4]


BANK OF AMERICA, N.A.,

as a Refinancing Term Lender, a Refinancing Revolving Lender and an Issuing Bank

By:  

/s/ Scott Tolchin

 

Name: Scott Tolchin

 

Title: Managing Director

[Signature Page to Amendment No. 4]


DNB (UK) LIMITED,

as a Refinancing Revolving Lender

By:  

/s/ Shane Gillogley

 

Name: Shane Gillogley

 

Title: Authorised Signatory

 By:  

/s/ Kay Newman

 

Name: Kay Newman

 

Title: Authorised Signatory

 

Notice Address:

 

8th Flr. The Wolbrook bldg.

25 Wolbrook, London EC4N8AF

Attention:

 

Credit Middle Office 8 Agency

Facsimile:

 

Email:

 

cmoalondon@dnb.no

[Signature Page to Amendment No. 4]


GOLDMAN SACHS BANK USA,

 

as a Refinancing Revolving Lender and an Issuing Bank

By:

 

/s/ Thomas Manning

 

Name: Thomas Manning

 

Title: Authorized Signatory

 

Notice Address:

 

1200 West Street New York, NY 10282

Attention:

 

OPERATIONS CONTACT

Facsimile:

 

(917) 977-3966

Email:

 

gs-sbd-admin-contacts@ny.email.gs.com

[Signature Page to Amendment No. 4]


ING BANK N.V.,

 

as a Refinancing Revolving Lender and an Issuing Bank

By:  

/s/ Wim Steenbakkers

 

Name: Wim Steenbakkers

 

Title: Managing Director

 By:  

/s/ Sicco Boomsma

 

Name: Sicco Boomsma

 

Title: Managing Director

 

Notice Address:

  Bijlmerdreef 24, 1102 CT Amsterdam ZO; P.O. Box 1800; 1000 BV Amsterdam, The Netherlands

Attention:

 

Sector TMT&H / Wim Steenbakkers

Facsimile:

 

Email:

 

[Signature Page to Amendment No. 4]


NATIONAL WESTMINSTER BANK PLC,

 

as a Refinancing Revolving Lender

By:  

/s/ Richard Bradbury

 

Name: Richard Bradbury

 

Title: Managing Director

 

Notice Address:

 

Natwest, 250 Bishopsgate, London, EC2M 4AA

Attention:

 

Rhys Yeo / Alex Maltby

Facsimile:

 

N/A

Email:

  rhys.yeo@natwest.com alex.maltby@natwest.com

[Signature Page to Amendment No. 4]


CITIZENS BANK, N.A.,

 

as a Refinancing Revolving Lender and an Issuing Bank

By:  

/s/ Ian Grotenhuis

 

Name: Ian Grotenhuis

 

Title: Vice President

 

Notice Address:

 

20 Cabot Road, Medford, MA 02155

Attention:

 

Rachel Eustis

Facsimile:

 

817-945-6073

Email:

  CLOoperations@citizensbank.com

[Signature Page to Amendment No. 4]


HSBC UK BANK PLC,

 

as a Refinancing Revolving Lender and an Issuing Bank

By:  

/s/ Caroline Winter-Nolan

 

Name: Caroline Winter-Nolan

 

Title: Senior Legal Counsel

 

Notice Address:

  6th Floor Queen Victoria Street, London EC4V 4AY

Attention:

 

Danielle Cherubin

Facsimile:

 

-

Email:

 

danielle.cherubin@hsbc.com

[Signature Page to Amendment No. 4]


INTESA SANPAOLO BANK LUXEMBOURG S.A,

 

as a Refinancing Revolving Lender

By:  

/s/ Ivan Caliandro

 

Name: Ivan Caliandro

 

Title: Chief Financial Officer

By:  

/s/ Paola Bruni

  Name: Paola Bruni
  Title: Head of Corporate Desk

 

Notice Address:   Boulevard de Kockelscheuer 28 L-1821 Luxembourg
Attention:   Paola Bruni
Facsimile:   -
Email:   Paola.Bruni@intesasanpaololux.com

[Signature Page to Amendment No. 4]


JPMORGAN CHASE BANK, N.A.,

 

as a Refinancing Revolving Lender and an Issuing Bank

By:  

/s/ Monica Knight

  Name: Monica Knight
  Title: Vice President

 

Notice Address:   455 16th Street, Suite 407 Denver, CO 80202

Attention:

 

Monica Knight

Facsimile:   1-214-307-6874
Email:   monica.knight@jpmorgan.com

[Signature Page to Amendment No. 4]


MUFG Bank, Ltd. in its capacities as a Refinancing Revolving Lender and an Issuing Bank
By:  

/s/ : Gurhan Uslubas

  Name: Gurhan Uslubas
  Title: Vice President

 

Notice Address:   350 California St., San Francisco, CA 94104
Attention:   Eric Enberg
Facsimile:   -
Email:   eenberg@us.mufg.jp

[Signature Page to Amendment No. 4]


UBS AG, STAMFORD BRANCH

 

as a Refinancing Revolving Lender and an Issuing Bank

By:  

/s/ Houssem Daly

 

Name: Houssem Daly

 

Title: Director

By:  

/s/ Muhammas Afzal

 

Name: Muhammas Afzal

 

Title: Director

 

Notice Address:

 

UBS AG, Stamford Branch 600 Washington Boulevard, Stamford, CT 06901

Attention:

 

Massimo Ippolito

Facsimile:

 

203-719-3888

Email:

 

Agency-UBSAmericas@ubs.com

[Signature Page to Amendment No. 4]


NATIXIS, NEW YORK BRANCH,

 

as a Refinancing Revolving Lender and an Issuing Bank

By:  

/s/ Brandon Ferry

 

Name: Brandon Ferry

 

Title: Managing Director

By:  

/s/ Brendan Austin

 

Name: Brendan Austin

 

Title: Vice President

 

Notice Address:

 

1251 Avenue of the Americas

Attention:

 

Aaron Lazarus

Facsimile:

 

N/A

Email:

 

aaron.lazarus@natixis.com

[Signature Page to Amendment No. 4]


[Signature Pages of Extending Term Lenders are on file with the Administrative Agent]


Schedule I

Refinancing Term Loans

 

Refinancing Term Lender

   Principal Amount  

Bank of America, N.A.

   $ 633,994,802.66  
  

 

 

 

Total

   $ 633,994,802.66  

Refinancing Revolving Commitments

 

Refinancing Revolving Lender

   Principal Amount  

Bank of America, N.A.

   $ 43,000,000.00  

DNB (UK) Limited

   $ 53,500,000.00  

Goldman Sachs Bank USA

   $ 53,500,000.00  

ING Bank N.V.

   $ 53,500,000.00  

National Westminster Bank PLC

   $ 53,500,000.00  

Citizens Bank, N.A.

   $ 43,000,000.00  

HSBC UK Bank Plc

   $ 43,000,000.00  

Intesa Sanpaolo Bank Luxembourg S.A.

   $ 43,000,000.00  

JPMorgan Chase Bank, N.A.

   $ 43,000,000.00  

MUFG Bank, Ltd.

   $ 43,000,000.00  

UBS AG, Stamford Branch

   $ 43,000,000.00  

Natixis, New York Branch

   $ 35,000,000.00  
  

 

 

 

Total

   $ 550,000,000.00  

LC Commitments

 

Issuing Bank

   Principal Amount  

Bank of America, N.A.

   $ 10,750,000.00  

Goldman Sachs Bank USA

   $ 13,375,000.00  

ING Bank N.V.

   $ 13,375,000.00  

Citizens Bank, N.A.

   $ 10,750,000.00  

HSBC UK Bank Plc

   $ 10,750,000.00  

JPMorgan Chase Bank, N.A.

   $ 10,750,000.00  

MUFG Bank, Ltd.

   $ 10,750,000.00  

UBS AG, Stamford Branch

   $ 10,750,000.00  

Natixis, New York Branch

   $ 8,750,000.00  
  

 

 

 

Total

   $ 100,000,000.00  


Exhibit A

[Attached]


EXECUTION VERSIONExecution Version

EXHIBIT A

 

 

 

CREDIT AGREEMENT

dated as of

December 12, 2019,

as amended by Amendment No. 1, dated as of January 25, 2021,

as amended by Amendment No. 2, dated as of December 17, 2021 and,

as amended by Amendment No. 3, dated as of December 2, 2022, and

as amended by Amendment No. 4, dated as of March 28, 2024,

among

CONNECT MIDCO LIMITED,

as Initial Holdings,

CONNECT BIDCO LIMITED,

as Bidco,

CONNECT FINCO SARL,

as the Finco Borrower and the Borrower Representative,

CONNECT U.S. FINCO LLC,

as the U.S. Borrower,

certain Restricted Subsidiaries of Bidco from time to time party hereto,

as Additional Borrowers,

The Lenders and Issuing Banks party hereto

and

BARCLAYS BANK PLCOF AMERICA, N.A.,

as Administrative Agent and Collateral Agent

 

 

BANK OF AMERICA, N.A.,

DNB (UK) LIMITED,

GOLDMAN SACHS BANK USA,

ING BANK N.V.,

NATWEST MARKETS PLC,

CITIZENS BANK, N.A.,

BARCLAYSHSBC UK BANK PLC,

BOFA SECURITIES, INC.

and

INTESA SANPAOLO BANK LUXEMBOURG S.A.,

JPMORGAN CHASE BANK, N.A.,

MUFG BANK, LTD.

and

UBS SECURITIES LLC,

UBS SECURITIES LLC,

as Joint Global Coordinators and Joint Lead Arrangers and Joint Bookrunners

 

 

 

BARCLAYS BANK PLC,

BOFA SECURITIES, INC.,

UBS SECURITIES LLC,

BNP PARIBAS FORTIS S.A./N.V.,

HSBC BANK PLC,


ING BANK N.V.,

NATIXIS, NEW YORK BRANCH,

NATWEST MARKETS PLC,

SUMITOMO MITSUI BANKING CORPORATION,

BANCA IMI S.P.A., LONDON BRANCH,

MUFG BANK, LTD.,

DNB (UK) LIMITED,

THE BANK OF NOVA SCOTIA, LONDON BRANCH

and

MIZUHOHSBC BANK PLC, LTD.,

as Joint Bookrunners

INTESA SANPAOLO BANK LUXEMBOURG S.A.,

NATIXIS, NEW YORK BRANCH and

UBS SECURITIES LLC,

as Co-Managers

 

 

 


TABLE OF CONTENTS

 

     Page  

ARTICLE I

 

DEFINITIONS

  
SECTION 1.01   Defined Terms      1  
SECTION 1.02   Classification of Loans and Borrowings      99106  
SECTION 1.03   Terms Generally      99106  
SECTION 1.04   Accounting Terms; IFRS      100106  
SECTION 1.05   Effectuation of Transactions      100107  
SECTION 1.06   Limited Condition Transactions      100107  
SECTION 1.07   Certain Determinations      101108  
SECTION 1.08   Additional Alternative Currencies      102109  
SECTION 1.09   Currency Equivalents Generally      103109  
SECTION 1.10   Divisions      103110  
SECTION 1.11   Agreed Security Principles; Guarantee Limitations      103110  
SECTION 1.12   Additional Borrowers      103110  
SECTION 1.13   Borrower Representative      103110  
SECTION 1.14   Guernsey Customary Law      104111  
SECTION 1.15   Interest Rates      104111  

ARTICLE II

 

THE CREDITS

  
SECTION 2.01   Commitments      105112  
SECTION 2.02   Loans and Borrowings      105113  
SECTION 2.03   Requests for Borrowings      106113  
SECTION 2.04   Letters of Credit      107115  
SECTION 2.05   Funding of Borrowings      113122  
SECTION 2.06   Interest Elections      114122  
SECTION 2.07   Termination and Reduction of Commitments      115124  
SECTION 2.08   Repayment of Loans; Evidence of Debt      116124  
SECTION 2.09   Amortization of Term Loans      117125  
SECTION 2.10   Prepayment of Loans      117126  
SECTION 2.11   Fees      128137  
SECTION 2.12   Interest      129138  
SECTION 2.13   Alternate Rate of Interest      130139  
SECTION 2.14   Increased Costs      134146  
SECTION 2.15   Break Funding Payments      135148  
SECTION 2.16   Taxes      135148  
SECTION 2.17   Payments Generally; Pro Rata Treatment; Sharing of Setoffs      140153  
SECTION 2.18   Mitigation Obligations; Replacement of Lenders      142155  
SECTION 2.19   Incremental Credit Extensions      143156  
SECTION 2.20   Refinancing Amendments      145158  
SECTION 2.21   Defaulting Lenders      146159  

 

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TABLE OF CONTENTS

(continued)

 

     Page  
SECTION 2.22   Illegality      148161  
SECTION 2.23   Loan Modification Offers      148162  
SECTION 2.24   Swingline Loans      149163  

ARTICLE III

 

REPRESENTATIONS AND WARRANTIES

  
SECTION 3.01   Organization; Powers      151164  
SECTION 3.02   Authorization; Enforceability      151165  
SECTION 3.03   Governmental Approvals; No Conflicts      152165  
SECTION 3.04   No Material Adverse Effect      152165  
SECTION 3.05   Properties      152165  
SECTION 3.06   Litigation and Environmental Matters      152166  
SECTION 3.07   Compliance with Laws      153166  
SECTION 3.08   Investment Company Status      153166  
SECTION 3.09   Taxes      153166  
SECTION 3.10   ERISA      153166  
SECTION 3.11   Disclosure      154167  
SECTION 3.12   Subsidiaries      154167  
SECTION 3.13   Intellectual Property; Licenses, Etc.      154168  
SECTION 3.14   Solvency      155168  
SECTION 3.15   Senior Indebtedness      155158  
SECTION 3.16   Federal Reserve Regulations      155168  
SECTION 3.17   Use of Proceeds      155168  
SECTION 3.18   Anti-Corruption Laws; Sanctions; USA PATRIOT Act      156169  

ARTICLE IV

 

CONDITIONS

  
SECTION 4.01   Effective Date and Certain Funds Utilization      156169  
SECTION 4.02   Each Credit Event      158171  

ARTICLE V

 

AFFIRMATIVE COVENANTS

  
SECTION 5.01   Financial Statements and Other Information      159172  
SECTION 5.02   Notices of Material Events      162175  
SECTION 5.03   Information Regarding Collateral      162176  
SECTION 5.04   Existence; Conduct of Business      163176  
SECTION 5.05   Payment of Taxes, Etc.      163176  
SECTION 5.06   Maintenance of Properties      163176  
SECTION 5.07   Insurance      163177  
SECTION 5.08   Books and Records; Inspection and Audit Rights      164177  

 

-ii-


TABLE OF CONTENTS

(continued)

 

     Page  
SECTION 5.09   Compliance with Laws      164177  
SECTION 5.10   Use of Proceeds and Letters of Credit      164178  
SECTION 5.11   Additional Subsidiaries; Guarantor Coverage Test      164178  
SECTION 5.12   Further Assurances      166179  
SECTION 5.13   Designation of Subsidiaries      166180  
SECTION 5.14   Certain Post-Closing Obligations      167180  
SECTION 5.15   Maintenance of Rating of Bidco and the Facilities      167180  
SECTION 5.16   Lines of Business      167180  
SECTION 5.17   Transactions with Affiliates      167181  
SECTION 5.18   Refinancing      168182  
SECTION 5.19   Acquisition Undertakings      168182  

ARTICLE VI

 

NEGATIVE COVENANTS

  
SECTION 6.01   Indebtedness; Certain Equity Securities      169182  
SECTION 6.02   Liens      178192  
SECTION 6.03   Fundamental Changes; Holdings Covenant      178192  
SECTION 6.04   Asset Sales      180194  
SECTION 6.05   Limitation on Restricted Payments      182196  
SECTION 6.06   Restrictive Agreements      192206  
SECTION 6.07   Financial Performance Covenant      194209  

ARTICLE VII

 

EVENTS OF DEFAULT

  
SECTION 7.01   Events of Default      194209  
SECTION 7.02   Right to Cure      198213  
SECTION 7.03   Application of Proceeds      199214  

ARTICLE VIII

 

ADMINISTRATIVE AGENT

  
SECTION 8.01   Appointment and Authority      200215  
SECTION 8.02   Rights as a Lender      201216  
SECTION 8.03   Exculpatory Provisions      201216  
SECTION 8.04   Reliance by Administrative Agent      202217  
SECTION 8.05   Delegation of Duties      202217  
SECTION 8.06   Resignation of Administrative Agent      202217  
SECTION 8.07   Non-Reliance on Administrative Agent and Other Lenders      203219  
SECTION 8.08   No Other Duties, Etc.      204220  
SECTION 8.09   Administrative Agent May File Proofs of Claim      204220  
SECTION 8.10   No Waiver; Cumulative Remedies; Enforcement      205221  

 

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TABLE OF CONTENTS

(continued)

 

     Page  
SECTION 8.11   Withholding Taxes      206221  
SECTION 8.12   Certain ERISA Matters      206222  
SECTION 8.13   Recovery of Erroneous Payments      222  

ARTICLE IX

 

MISCELLANEOUS

  
SECTION 9.01   Notices      207223  
SECTION 9.02   Waivers; Amendments      209224  
SECTION 9.03   Expenses; Indemnity; Damage Waiver      212228  
SECTION 9.04   Successors and Assigns      215231  
SECTION 9.05   Survival      222238  
SECTION 9.06   Counterparts; Integration; Effectiveness      222238  
SECTION 9.07   Severability      223240  
SECTION 9.08   Right of Setoff      223240  
SECTION 9.09   Governing Law; Jurisdiction; Consent to Service of Process      223241  
SECTION 9.10   WAIVER OF JURY TRIAL      224241  
SECTION 9.11   Headings      224242  
SECTION 9.12   Confidentiality      224242  
SECTION 9.13   USA PATRIOT Act      226243  
SECTION 9.14   Release of Liens and Guarantees      226243  
SECTION 9.15   No Advisory or Fiduciary Responsibility      227244  
SECTION 9.16   Interest Rate Limitation      228245  
SECTION 9.17   Intercreditor Agreements      228245  
SECTION 9.18   Cashless Settlement      228246  
SECTION 9.19   Acknowledgement and Consent to Bail-In of Affected Financial Institutions      229246  
SECTION 9.20   Acknowledgement Regarding Any Supported QFCs      229246  
SECTION 9.21   Joint and Several Liability      230247  
SECTION 9.22   Judgment Currency      230247  
SECTION 9.23   Lender Affiliates and Facility Offices      230248  
SECTION 9.24   Interim Facilities Agreement      231249  

 

-iv-


SCHEDULES:

 

Schedule 1.01(a)

     

Agreed Security Principles

Schedule 1.01(b)

     

Excluded Subsidiaries

Schedule 1.01(c)

     

Existing Letters of Credit

Schedule 1.01(d)

     

Non-U.S. Security Agreements

Schedule 2.01

     

Commitments and Loans

Schedule 3.03

     

Government Approvals; No Conflicts

Schedule 3.06

     

Litigation and Environmental Matters

Schedule 3.12

     

Subsidiaries

Schedule 5.14

     

Certain Post-Closing Obligations

Schedule 5.17

     

Transactions with Affiliates

Schedule 9.01

     

Notices

EXHIBITS:

     

Exhibit A

     

Form of Assignment and Assumption

Exhibit B

     

Form of Guarantee Agreement

Exhibit C

     

Form of Perfection Certificate

Exhibit D

     

Form of Collateral Agreement

Exhibit E

     

[Reserved]

Exhibit F

     

Form of Pari Passu Intercreditor Agreement

Exhibit G

     

Form of Second Lien Intercreditor Agreement

Exhibit H

     

Form of Additional Borrower Agreement

Exhibit I

     

Form of Intercompany Note

Exhibit J

     

Form of Specified Discount Prepayment Notice

Exhibit K

     

Form of Specified Discount Prepayment Response

Exhibit L

     

Form of Discount Range Prepayment Notice

Exhibit M

     

Form of Discount Range Prepayment Offer

Exhibit N

     

Form of Solicited Discounted Prepayment Notice

Exhibit O

     

Form of Solicited Discounted Prepayment Offer

Exhibit P

     

Form of Acceptance and Prepayment Notice

Exhibit Q-1

     

Form of United States Tax Compliance Certificate 1 (For Foreign Lenders That Are Not Partnerships for U.S. Federal Income Tax Purposes)

Exhibit Q-2

     

Form of United States Tax Compliance Certificate 2 (For Non-U.S. Lenders That Are Partnerships for U.S. Federal Income Tax Purposes)

Exhibit Q-3

     

Form of United States Tax Compliance Certificate 3 (For Non-U.S. Participants That Are Not Partnerships for U.S. Federal Income Tax Purposes)

Exhibit Q-4

     

Form of United States Tax Compliance Certificate 4 (For Non-U.S. Participants That Are Partnerships for U.S. Federal Income Tax Purposes)

Exhibit R

     

Form of Note

Exhibit S

     

[Reserved]

Exhibit T

     

Form of Notice of Borrowing

Exhibit U

     

Form of Letter of Credit Request

Exhibit V

     

Form of Cash Management Bank Designation

Exhibit W

     

Form of Hedge Bank Designation

Exhibit X

     

Form of Prepayment Notice

Exhibit Y

     

Form of Substitute Affiliate Lender Designation Notice

 

-v-


CREDIT AGREEMENT

CREDIT AGREEMENT dated as of December 12, 2019 (this “Agreement”), among CONNECT MIDCO LIMITED (f/k/a Triton Midco (Guernsey) Limited), a non-cellular company limited by shares incorporated under the laws of Guernsey with company number 66186 (“Initial Holdings”), CONNECT BIDCO LIMITED (f/k/a Triton Bidco (Guernsey) Limited), a non-cellular company limited by shares incorporated under the laws of Guernsey with company number 66187 (“Bidco”), CONNECT FINCO SARL (f/k/a Triton Finco SARL), a private limited liability company (société à responsabilité limitée) incorporated in Luxembourg, having its registered office at 1-3, Boulevard de la Foire, L-15286, rue Eugène Ruppert, L-2453 Luxembourg, registered with the Luxembourg Trade and Companies Register (R.C.S. Luxembourg) under number B233109 (the “Finco Borrower”), as a Revolving Borrower and a Term Borrower, CONNECT U.S. FINCO LLC, a Delaware limited liability company (the “U.S. Borrower”), as a Revolving Borrower and a Term Borrower (the U.S. Borrower, in its capacity as a term borrower, together with the Finco Borrower, the “Term Borrowers” and, the U.S. Borrower in its capacity as a revolving borrower, together with the Finco Borrower in its capacity as a revolving borrower and any Additional Borrowers from time to time party hereto, the “Revolving Borrowers” and, collectively with the Term Borrowers, the “Borrowers”), the LENDERS and ISSUING BANKS party hereto and Barclays Bank PLCof America, N.A. (“BarclaysBofA”), as Administrative Agent and Collateral Agent.

The parties hereto agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01 Defined Terms.

As used in this Agreement, the following terms have the meanings specified below:

2011 Ex-Im Credit Agreement” means the credit agreement dated May 11, 2011 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) between, among others, Inmarsat Investments Limited as borrower and ING Capital LLC as Ex-Im facility agent.

2014 Ex-Im Credit Agreement” means the credit agreement dated November 10, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) between, among others, Inmarsat Investments Limited as borrower and ING Capital LLC as Ex-Im facility agent.

2022 Notes” means the $1,000,000,000 4.875% senior notes due 2022 issued by Inmarsat Finance plc.

2024 Notes” means the $400,000,000 6.500% senior notes due 2024 issued by Inmarsat Finance plc.

ABR” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

Acceptable Commitment” has the meaning assigned to such term in Section 6.04(b)(ii).

Acceptable Discount” has the meaning assigned to such term in Section 2.10(a)(ii)(D)(2).

 

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Acceptable Prepayment Amount” has the meaning assigned to such term in Section 2.10(a)(ii)(D)(3).

Acceptance and Prepayment Notice” means an irrevocable written notice from a Term Lender accepting a Solicited Discounted Prepayment Offer to make a Discounted Term Loan Prepayment at the Acceptable Discount specified therein pursuant to Section 2.10(a)(ii)(D) substantially in the form of Exhibit P.

Acceptance Date” has the meaning specified in Section 2.10(a)(ii)(D)(2).

Accepting Lenders” has the meaning specified in Section 2.23(a).

Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined as if references to Bidco and the Restricted Subsidiaries in the definition of “Consolidated EBITDA” were references to such Pro Forma Entity and its subsidiaries that will become Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity.

Acquired Entity or Business” has the meaning given such term in the definition of “Consolidated EBITDA.”

Acquired Indebtedness” means, with respect to any specified Person,

(1) Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging, consolidating or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and

(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

Acquisition” means the acquisition of the Company by Bidco pursuant to the terms of the Acquisition Documents.

Acquisition Documents” means the Scheme Documents and any other document designated as an Acquisition Document by Bidco and the Administrative 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.

Additional Borrower” means any Person who shall from time to time become a party to this Agreement as a “Revolving Borrower” hereunder upon the execution and delivery of an Additional Borrower Agreement.

Additional Borrower Agreement” means the Additional Borrower Agreement substantially in the form of Exhibit H hereto.

Additional Lender” means any Additional Revolving Lender or any Additional Term Lender, as applicable.

 

-2-


Additional/Replacement Revolving Commitments” has the meaning assigned to such term in Section 2.19(a).

Additional Revolving Lender” means, at any time, any bank, financial institution or other institutional lender or investor (other than any natural person) or any Person that would be an Affiliated Lender that agrees to provide any portion of any (a) Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments pursuant to an Incremental Facility Amendment in accordance with Section 2.19 or (b) Credit Agreement Refinancing Indebtedness in the form of Other Revolving Commitments pursuant to a Refinancing Amendment in accordance with Section 2.20; provided that each Additional Revolving Lender shall be subject to the approval of the Administrative Agent, each Issuing Bank and the Swingline Lender, in each case only if such consent would be required under Section 9.04(b) for an assignment of Revolving Loans or Revolving Commitments, as applicable, to such bank, financial institution or other institutional lender or investor (such approval in each case not to be unreasonably withheld, conditioned or delayed) and Bidco.

Additional Term Lender” means, at any time, any bank, financial institution or other institutional lender or investor (other than any natural person) or any Person that would be an Affiliated Lender that agrees to provide any portion of any (a) Incremental Term Loans pursuant to an Incremental Facility Amendment in accordance with Section 2.19 or (b) Credit Agreement Refinancing Indebtedness in the form of Other Term Loans or Other Term Commitments pursuant to a Refinancing Amendment in accordance with Section 2.20; provided that each Additional Term Lender shall be subject to the approval of the Administrative Agent if such consent would be required under Section 9.04(b) for an assignment of Term Loans or Term Commitments, as applicable, to such bank, financial institution or other institutional lender or investor (such approval in each case not to be unreasonably withheld, conditioned or delayed) and Bidco.

Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, a rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the product of (i) the LIBO Rate as in effect at such time for such Interest Period and (ii) the Statutory Reserve Rate; provided that the Adjusted LIBO Rate for any Interest Period shall not be less than (a) 1.00% per annum, with respect to any Amendment No. 1 Refinancing Term Loans and (b) 0.00% per annum, with respect to any Revolving Loans.

“Additional/Replacement Revolving Commitments” has the meaning assigned to such term in Section 2.19(a).

Administrative Agent” means BarclaysBofA, in its capacity as administrative agent hereunder and under the other Loan Documents, and its successors in such capacity as provided in Article VIII.

Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 9.01, or such other address or account as the Administrative Agent may from time to time notify Bidco and the Borrowers and the Lenders.

Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.

Affected Class” has the meaning specified in Section 2.23(a).

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

 

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Affiliate” means, with respect to a specified Person, another Person that directly or indirectly Controls or is Controlled by or is under common Control with the Person specified.

Affiliated Debt Fund” means any Affiliated Lender that is a bona fide diversified debt fund primarily engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course.

Affiliated Lender” means, at any time, any Lender that is an Investor or an Affiliate of an Investor (other than Holdings, Bidco or any of their respective Subsidiaries) at such time, to the extent that such Investor or its Affiliates constitute an Affiliate of Holdings, Bidco or its Subsidiaries.

Agent” means the Administrative Agent, the Collateral Agent, each Joint Lead Arranger, and any successors and assigns of the foregoing in such capacity, and “Agents” means two or more of them.

Agent Parties” has the meaning given to such term in Section 9.01(c).

“Agreed Currency” or Agreed Currencies” means U.S. Dollarsdollars and each Alternative Currency.

Agreed Security Principles” means those principles set forth on Schedule 1.01(a).

Agreement” has the meaning given to such term in the preliminary statements hereto.

Agreement Currency” has the meaning specified in Section 9.22.

Allocation Date” means the date of the initial allocation of the Initial Term Loans, which date was September 23, 2019.

Alternate Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the NYFRB (i) in the case of the Amendment No. 1 Refinancing Term Loans, the NYFRB Rate plus 1/2 of 1.00%, or (ii) in the case of any Loans (other than the Amendment No. 1 Refinancing Term Loans), the Federal Funds Effective Rate plus 1/2 of 1.00% and (c) Term SOFR (which rate shall be calculated based on an Interest Period of one month as of such date) plus 1.00%; provided that, for the avoidance of doubt, Term SOFR for any day shall be Term SOFR for a one-month interest period on the day that is two (2) Business Days prior to such day, as such rate is published by the Term SOFR Administrator. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB, the Federal Funds Effective Rate or Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, NYFRB, the Federal Funds Effective Rate or Term SOFR, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.13 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.13), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

Alternative Currency” means Euros, Sterling, Swiss Francs, Yen, Canadian Dollars and each other currency (other than dollars) that is requested by Bidco or the Borrowers and approved in accordance with Section 1.08.

Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the relevant Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or other applicable date of determination) for the purchase of such Alternative Currency with dollars.

 

-4-


Amendment No. 1” means that certain Amendment No. 1, dated as of the Amendment No. 1 Effective Date, among Initial Holdings, Bidco, the Borrowers, the Lenders party thereto and the Administrative Agent.

Amendment No. 1 Effective Date” means January 25, 2021.

Amendment No. 1 Refinancing Term Loans” means the Other Term Loans made pursuant to Amendment No. 1 on the Amendment No. 1 Effective Date in an aggregate principal amount of $1,736,875,000. On the Amendment No. 4 Effective Date, immediately after giving effect to the Term Loan Maturity Date Extension (as defined in Amendment No. 4), the making of the Refinancing Term Loans (as defined in Amendment No. 4) and the prepayment of Amendment No. 1 Refinancing Term Loans (in each case, on the Amendment No. 4 Effective Date), $300,000,000 in aggregate principal amount of Amendment No. 1 Refinancing Term Loans was outstanding. For the avoidance of doubt, the Amendment No. 4 Term Loans shall not constitute Amendment No. 1 Refinancing Term Loans.

“Amendment No. 2” means that certain Amendment No. 2, dated as of December 17, 2021, among Initial Holdings, Bidco, the Borrowers, the Lenders party thereto and the Administrative Agent.

Amendment No. 3” means that certain Amendment No. 3, dated as of the Amendment No. 3 Effective Date, among Bidco and the Administrative Agent.

Amendment No. 3 Effective Date” means December 2, 2022.

Amendment No. 3 Transition Date” means June 30, 2023.

“Amendment No. 4” means that certain Amendment No. 4, dated as of the Amendment No. 4 Effective Date, among Initial Holdings, Bidco, the Borrowers, the other Subsidiary Loan Parties, the Lenders party thereto, the Issuing Banks party thereto, the Swingline Lender and the Administrative Agent.

“Amendment No. 4 Effective Date” means March 28, 2024.

“Amendment No. 4 Term Loans” means, collectively, (a) the Amendment No. 1 Refinancing Term Loans of each Extending Term Lender (as defined in Amendment No. 4) on the Amendment No. 4 Effective Date and (b) the Other Term Loans made pursuant to Amendment No. 4 on the Amendment No. 4 Effective Date (in an aggregate principal amount of $633,994,802.66). Pursuant to Amendment No. 4, on the Amendment No. 4 Effective Date, the Amendment No. 1 Refinancing Term Loans of each Extending Term Lender (as defined in Amendment No. 4) on the Amendment No. 4 Effective Date were converted into Amendment No. 4 Term Loans (on a dollar-for-dollar basis), and thereafter ceased to constitute Amendment No. 1 Refinancing Term Loans. As of the Amendment No. 4 Effective Date, $1,300,000,000 in aggregate principal amount of Amendment No. 4 Term Loans was outstanding.

Announcement” means the press release made by Bidco, dated as of March 25, 2019, announcing a firm intention to implement the Scheme in accordance with Rule 2.7 of the City Code.

Anti-Corruption Laws” has the meaning assigned to such term in Section 3.18(a).

 

-5-


Applicable Account” means, with respect to any payment to be made to the Administrative Agent hereunder, the account specified by the Administrative Agent from time to time for the purpose of receiving payments of such type.

“Applicable Authority” means (a) with respect to Term SOFR, the Term SOFR Administrator or any Governmental Authority having jurisdiction over the Administrative Agent or the Term SOFR Administrator with respect to its publication of Term SOFR, in each case acting in such capacity, and (b) with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative Currency or any Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of the applicable Relevant Rate, in each case acting in such capacity.

Applicable Discount” has the meaning assigned to such term in Section 2.10(a)(ii)(C)(2).

Applicable Fronting Exposure” means, with respect to any Person that is an Issuing Bank or the Swingline Lender at any time the sum of (a) the aggregate amount of all Letters of Credit issued by such Person in its capacity as an Issuing Bank (if applicable) that remains available for drawing at such time, (b) the aggregate amount of all LC Disbursements made by such Person in its capacity as an Issuing Bank (if applicable) that have not yet been reimbursed by or on behalf of the Revolving Borrowers at such time and (c) the aggregate principal amount of all Swingline Loans made by such Person in its capacity as a Swingline Lender (if applicable) outstanding at such time.

Applicable Percentage” means, at any time, with respect to any Revolving Lender, the percentage of the aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time (or, if the Revolving Commitments have terminated or expired, such Lender’s share of the total Revolving Exposure at that time); provided that, at any time any Revolving Lender shall be a Defaulting Lender, “Applicable Percentage” shall mean the percentage of the total Revolving Commitments (disregarding any such Defaulting Lender’s Revolving Commitment) represented by such Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the applicable Revolving Commitments most recently in effect, giving effect to any assignments pursuant to this Agreement and to any Lender’s status as a Defaulting Lender at the time of determination.

Applicable Rate” means, for any day,

(a) (i) with respect to any Initial Term Loan, 3.50% per annum in the case of any ABR Loan or 4.50% per annum in the case of a Term Benchmark Loan and, (ii) with respect to any Amendment No. 1 Refinancing Term Loan, 2.50% per annum in the case of any ABR Loan or 3.50% per annum in the case of a Term Benchmark Loan, and (iii) with respect to any Amendment No. 4 Term Loan, 3.50% per annum in the case of any ABR Loan or 4.50% per annum in the case of a Term Benchmark Loan; and

(b) with respect to any Revolving Loan,

(i) prior to the Amendment No. 4 Effective Date, the applicable rate per annum set forth below under the caption “ABR Spread” (with respect to ABR Loans) or “Adjusted LIBO Rate, Term SOFR SpreadBenchmark or RFR Rate Spread” (with respect to Eurodollar Loans, Term Benchmark Loans or RFR Loans) as the case may be, based upon the Senior Secured First Lien Net Leverage Ratio as of the end of the fiscal quarter of Bidco for which consolidated financial statements have theretofore been most recently delivered pursuant to Section 5.01(a) or 5.01(b); provided that until the date of the delivery of the consolidated financial statements pursuant to Section 5.01 as of and for the fiscal year ended December 31, 2019, the Applicable Rate shall be based on the rates per annum set forth in Category 1:

 

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Senior Secured First Lien Net Leverage Ratio:

   ABR Spread     Adjusted LIBO Rate,
Term  SOFRBenchmark
or RFR Rate Spread
 

Category 1

Greater than 4.85 to 1.00

     2.50     3.50

Category 2

Greater than 4.35 to 1.00, but less than or equal to 4.85 to 1.00

     2.25     3.25

Category 3

Less than or equal to 4.35 to 1.00

     2.00     3.00

(ii) on or after the Amendment No. 4 Effective Date, the applicable rate per annum set forth below under the caption “ABR Spread” (with respect to ABR Loans) or “Term Benchmark or RFR Rate Spread” (with respect to Term Benchmark or RFR Loans) as the case may be, based upon the Total Net Leverage Ratio as of the end of the fiscal quarter of Bidco for which consolidated financial statements have theretofore been most recently delivered pursuant to Section 5.01(a) or 5.01(b); provided that until the date of the delivery of the consolidated financial statements pursuant to Section 5.01 as of and for the fiscal quarter ended March 31, 2024, the Applicable Rate shall be based on the rates per annum set forth in Category 2:

 

Total Net Leverage Ratio:

   ABR Spread     Term Benchmark or RFR Rate
Spread
 

Category 1

Greater than or equal to 3.75 to 1.00

     2.25 %      3.25 % 

Category 2

Greater than or equal to 3.25 to 1.00 but less than 3.75 to 1.00

     2.00 %      3.00 % 

Category 3

Greater than or equal to 2.75 to 1.00 but less than 3.25 to 1.00

     1.75 %      2.75 % 

Category 4

Less than 2.75 to 1.00

     1.50 %      2.50 % 

For purposes of the foregoing, each change in the Applicable Rate resulting from a change in the Senior Secured First Lien Net Leverage Ratio or the Total Net Leverage Ratio, as applicable, shall be effective during the period commencing on and including the Business Day following the date of delivery to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b) of the consolidated financial statements and related Compliance Certificate indicating such change and ending on the date immediately preceding the effective date of the next such change. Notwithstanding the foregoing, the Applicable Rate, at the option of the Administrative Agent or the Required Revolving Lenders, commencing upon written notice to Bidco, shall be based on the rates per annum set forth in Category 1 (i) at any time that an Event of Default under Section 7.01(a) has occurred and is continuing and shall continue to so apply to but excluding

 

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the date on which such Event of Default shall cease to be continuing (and thereafter, the Category otherwise determined in accordance with this definition shall apply) or (ii) if Bidco fails to deliver the consolidated financial statements required to be delivered pursuant to Section 5.01(a) or 5.01(b) or any Compliance Certificate required to be delivered pursuant hereto, in each case within the time periods specified herein for such delivery, during the period commencing on and including the day of the occurrence of a Default resulting from such failure and until the delivery thereof.

Approved Bank” has the meaning assigned to such term in clause (4) of the definition of the term “Cash Equivalents.”

Approved Foreign Bank” has the meaning assigned to such term in clause (15) of the definition of “Cash Equivalents.”

Approved Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course of its activities and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.

Asset Sale” means:

(1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of Bidco or any of its Restricted Subsidiaries (each referred to in this definition as a “disposition”); or

(2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than Preferred Stock of Restricted Subsidiaries issued in compliance with Section 6.01 hereof or the issuance of directors’ qualifying shares and shares issued to foreign nationals as required by applicable law), whether in a single transaction or a series of related transactions;

in each case, other than:

(a) any disposition of (i) Cash Equivalents or Investment Grade Securities, (ii) obsolete, damaged, used, surplus or worn out property or equipment, whether now owned or hereafter acquired, in the ordinary course of business and dispositions of property no longer used or useful, or economically practicable to maintain, in the conduct of the business of Bidco and any Restricted Subsidiary (including by ceasing to enforce, allowing the lapse, abandonment or invalidation of or discontinuing the use or maintenance of or putting into the public domain any intellectual property that is, in the reasonable judgment of Bidco or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, or in respect of which Bidco or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable) or (iii) any disposition of inventory, goods and other assets (including Settlement Assets) in the ordinary course of business or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate and as reasonably determined by Bidco in good faith);

(b) the disposition of all or substantially all of the assets of Bidco and its Restricted Subsidiaries in a manner permitted pursuant to the provisions of Section 6.03 hereof or any disposition that constitutes a Change of Control pursuant to this Agreement;

 

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(c) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 6.05 hereof, or solely for the purposes of Section 6.04(b)(ii), asset sales, the proceeds of which are used to make such Restricted Payments or Permitted Investments;

(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of less than the greater of $75,000,00050,000,000 and 105% of Consolidated EBITDA for the most recently ended Test Period as of such date, calculated on a Pro Forma Basis;

(e) any disposition (i) of property or assets or issuance of securities by a Restricted Subsidiary of Bidco to Bidco or any Borrower or by Bidco or a Restricted Subsidiary of Bidco to another Restricted Subsidiary of Bidco or (ii) to Bidco or a Restricted Subsidiary constituting debt forgiveness;

(f) dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to net proceeds of such disposition are promptly applied to the purchase price of such replacement property;

(g) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of intellectual property or other intangible assets), in each case that do not materially interfere with the business of Bidco and the Restricted Subsidiaries, taken as a whole;

(h) 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

(i) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary or any other disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or an Immaterial Subsidiary;

(j) foreclosures, condemnation, expropriation or any similar action with respect to assets, other transfers of property subject to casualty events or the granting of Liens not prohibited by this Agreement;

(k) (i) any disposition of accounts receivable, any participations thereof, Receivables Assets or related assets, in connection with any Receivables Facility, (ii) dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) or (iii) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;

(l) any financing transaction with respect to property built or acquired by Bidco or any Restricted Subsidiary after the Effective Date, including Sale and Lease-Back Transactions (and dispositions of property acquired by Bidco or any of the Restricted Subsidiaries after the Effective Date pursuant to Sale and Lease-Back Transactions) and asset securitizations permitted by this Agreement;

 

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(m) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;

(n) the unwinding or voluntary termination of any Hedging Obligations;

(o) any disposition in connection with the Transactions;

(p) dispositions of any assets (including Equity Interests) (A) acquired in connection with any acquisition or other Investment not prohibited by this Agreement, which assets are not used or useful to the core or principal business of Bidco and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with an acquisition;

(q) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(r) failing to pursue or allowing any registrations or any applications for registration of any intellectual property rights to lapse or go abandoned in the ordinary course of business if, in the reasonable determination of Bidco or a Restricted Subsidiary, such discontinuance is desirable in the conduct of the business of Bidco and its Restricted Subsidiaries taken as a whole;

(s) dispositions of property acquired by Bidco or any of the Restricted Subsidiaries pursuant to Sale and Lease-Back Transactions;

(t) dispositions in connection with Permitted Liens, Permitted Intercompany Activities, Permitted Tax Restructuring and related transactions;

(u) an issuance of Capital Stock by a Restricted Subsidiary as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors of Bidco or any holding company thereof;

(v) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than Bidco or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets, made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition; and

(w) any sale of property or assets, if the acquisition of such property or assets was financed with Excluded Contributions and the proceeds of such sale are used to make a Restricted Payment pursuant to Section 6.05(b)(x).

In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Sale and would also be a Permitted Investment or an Investment permitted under Section 6.05, Bidco, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Sale and/or one or more of the types of Permitted Investments or Investments permitted under Section 6.05.

 

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Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any Person whose consent is required by Section 9.04(b)), substantially in the form of Exhibit A or any other form reasonably approved by the Administrative Agent.

Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisorJoint Lead Arranger employed by Bidco (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to Section 2.10(a)(ii)(A); provided that Bidco shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent).

Available Amount” has the meaning assigned to such term in Section 6.05(a)(A).

Available Investments Amount” means, at any time, (i) the amount of Investments that may be made at the time of determination pursuant to clause (14) of the definition of “Permitted Investments”, minus (ii) the amount of the Available Investments Amount utilized by Bidco or any Restricted Subsidiary to make Restricted Debt Payments pursuant to clause (xiv) of Section 6.05(b).

Available Restricted Debt Payments Amount” means, at any time, (i) the amount of Restricted Debt Payments that may be made at the time of determination pursuant to clause (xiv) of Section 6.05(b), minus (ii) the sum of (a) the amount of the Available Restricted Debt Payments Amount utilized by Bidco or any Restricted Subsidiary to make Investments pursuant to clause (14) of the definition of “Permitted Investments” and (b) the amount of the Available Restricted Debt Payments Amount utilized by Bidco or any Restricted Subsidiary to make Restricted Payments pursuant to clause (xi) of Section 6.05(b).

Available Restricted Payments Amount” means, at any time, (i) the amount of Restricted Payments that may be made at the time of determination pursuant to clause (xi) of Section 6.05(b), minus (ii) the sum of (a) the amount of the Available Restricted Payments Amount utilized by Bidco or any Restricted Subsidiary to make Investments pursuant to clause (14) of the definition of “Permitted Investments” and (b) the amount of the Available Restricted Payments Amount utilized by Bidco or any Restricted Subsidiary to make Restricted Debt Payments pursuant to clause (xiv) of Section 6.05(b).

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or payment period for interest calculated with reference to such Benchmark, as applicable,component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.13.

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

 

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Bankruptcy Code” means Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.

Bank Products” means any facilities or services related to cash management, including treasury, depository, overdraft, credit or debit card, purchase card, electronic funds transfer and other cash management arrangements.

“Barclays” has the meaning given to such term in the preliminary statements hereto.

“Bankruptcy Code” means Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.

Benchmark” means, initially, the Relevant RateTerm SOFR; provided that if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to Relevant RateTerm SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.13.

Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in an Agreed Currency and not set forth in clause (1) below, “Benchmark Replacement” shall mean the alternative set forth in clause (2) below:

(1) (A) in the case of any Loans denominated in U.S. Dollarsdollars, Daily Simple SOFR,

(2) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. syndicated credit facilities denominated in the applicable Agreed Currencydollars at such time.

If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent (or, for purposes of clause (2) of the definition of “Benchmark Replacement”, the Administrative Agent with the consent of the Borrower) determines may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and the other provisions contemplated by

 

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Section 2.13 in a manner substantially consistent with market practice (provided that any such change that is not substantially consistent with both (x) market practice and (y) other U.S. syndicated credit facilities for similarly situated sponsors denominated in the Agreed Currencydollars for which the Administrative Agent acts as administrative agent shall be determined by the Administrative Agent in consultation with the Borrower), and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with both (x) market practice and (y) other U.S. syndicated credit facilities for similarly situated sponsors denominated in the Agreed Currencydollars for which the Administrative Agent acts as administrative agent (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof);

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date of the public statement or publication of information referenced thereinon which such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date; or

(3) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) above with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein solely to the extent such event applies to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof);

 

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(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof); or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

For the avoidance of doubt, if such Benchmark is a term rate, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clause (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13.

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”.

Bidco” has the meaning assigned to such term in the preliminary statements hereto.

Board of Directors” means, with respect to any Person, (a) in the case of any corporation, the board of directors of such Person or any committee thereof duly authorized to act on behalf of such board, (b) in the case of any limited liability company, the board of managers, board of directors, manager or managing member of such Person or the functional equivalent of the foregoing or any committee thereof duly authorized to act on behalf of such board, manager or managing member, (c) in the case of any partnership, the board of directors or board of managers of the general partner of such Person and (d) in any other case, the functional equivalent of the foregoing.

 

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

Borrower-Designated GuarantorBofA” has the meaning assignedgiven to such term in Section 5.11(a)the preliminary statements hereto.

Borrower Materials” has the meaning assigned to such term in the last paragraph of Section 5.01.

Borrower Offer of Specified Discount Prepayment” means the offer by the Borrower to make a voluntary prepayment of Term Loans at a Specified Discount to par pursuant to Section 2.10(a)(ii)(B).

Borrower Representative” has the meaning assigned to such term in Section 1.13.

“Borrowers” has the meaning assigned to such term in the preliminary statements hereto.

Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by the Borrower Representative of offers for, and the corresponding acceptance by a Term Lender of, a voluntary prepayment of Term Loans at a specified range at a discount to par pursuant to Section 2.10(a)(ii)(C).

Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by the Borrower Representative of offers for, and the subsequent acceptance, if any, by a Term Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.10(a)(ii)(D).

Borrower Tax Jurisdiction” means, as regards the relevant Borrower, that Borrower’s jurisdiction of incorporation unless that Borrower is incorporated in Guernsey, in which case its Borrower Tax Jurisdiction shall be the United Kingdom.

“Borrower-Designated Guarantor” has the meaning assigned to such term in Section 5.11(a).

“Borrowers” has the meaning assigned to such term in the preliminary statements hereto.

Borrowing” means (a) Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, Term Benchmark Loans and RFR Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan.

Borrowing Minimum” means (a) in the case of a Eurodollar or Term Benchmark Revolving Borrowing denominated in dollars, $1,000,000, (b) in the case of an ABR Revolving Borrowing, $500,000 and, (c) in the case of a Term Benchmark Revolving Borrowing denominated in any other Alternative Currency, the smallest amount of such Alternative Currency that is a multiple of 1,000,000 units of such currency and that has a Dollar Equivalent of $1,000,000 or more and (d) in the case of a Swingline Loan, $100,000.

Borrowing Multiple” means (a) in the case of a Eurodollar or Term Benchmark Revolving Borrowing denominated in dollars, $1,000,000, (b) in the case of an ABR Revolving Borrowing, $500,000 and, (c) in the case of a Term Benchmark Revolving Borrowing denominated in any other Alternative Currency, the smallest amount of such Alternative Currency that is a multiple of 1,000,000 units of such currency and that has a Dollar Equivalent of $1,000,000 or more and (d) in the case of a Swingline Loan, $100,000.

 

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Borrowing Request” means a request by a Borrower for a Borrowing in accordance with Section 2.03.

Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City, London, Luxembourg and/or Guernsey are authorized or required by law to remain closed; provided that (wi) in relation to Loanswhen used in connection with a Loan denominated in U.S. Dollarsdollars and in relation to the calculation or computation of Term SOFR, the term “Business Day” shall also exclude a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities, (x) when used in connection with a Eurodollar Loan denominated in Canadian Dollars, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Canadian Dollar deposits in the Toronto interbank market, (y) when used in connection with a Eurodollarii) if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in Euros, the term “Business Day” shall also exclude any day on which the TARGET2 payment system is not open and (z) in relation to RFR Loans and any interest rate settings,any fundings, disbursements, settlements orand payments in Euros in respect of any such RFRAlternative Currency Loan, or any other dealings in Sterling, shall mean any such day that is an RFR Business Day, and with respect to all notices and determinations in connection with, and payments of principal and interest on or with respect to, Loans denominated in anyEuros to be carried out pursuant to this Agreement in respect of any such Alternative Currency Loan, any day that ismeans a Business Day which is not a legal holiday or a day on which banking institutions are authorized or required by Requirements of Law or other governmental action to remain closed in the country of issuance of the applicable that is also a TARGET Day, (iv) if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in (x) Sterling, means a day other than a day banks are closed for general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom and (y) Swiss Francs, means a day other than when banks are closed for settlement and payments of foreign exchange transactions in Zurich because such day is a Saturday, Sunday or a legal holiday under the laws of Switzerland, (v) if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in a currency other than, Euro, Sterling or Swiss Francs, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the applicable offshore interbank market for such currency and (vi) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Euros in respect of an Alternative Currency Loan denominated in a currency other than Euros, or any other dealings in any currency other than Euro to be carried out pursuant to this Agreement in respect of any such Alternative Currency Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

Canadian Dollarsshall meanmeans the lawful currency of Canada.

Capital Stock” means:

(1) in the case of a corporation, corporate stock or shares in the capital of such corporation;

 

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(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock;

(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person (it being understood and agreed, for the avoidance of doubt, that “cash-settled phantom appreciation programs” in connection with employee benefits that do not require a dividend or distribution shall not constitute Capital Stock) but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

Capitalized Amount” means, as at the relevant date of determination, the sum of the amount of (a) the Equity Contributions and (b) the Senior Secured Notes actually issued, and the Initial Term Loans and Revolving Loans actually funded, on or prior to such date (excluding, in each case, (x) the aggregate gross proceeds of the Senior Secured Notes, the Initial Term Loans and the Revolving Loans to fund original issue discount or upfront fees and (y) any amounts drawn under the Revolving Facility on or prior to such date for working capital purposes).

Capitalized Lease Obligations” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with IFRS; provided that all obligations of any Person that are or would have been characterized as an operating lease as determined in accordance with IFRS (IAS 17) as in effect prior to January 13, 2016 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease or Capitalized Lease Obligation) for purposes of this Agreement regardless of any change in IFRS following such date that would otherwise require such obligation to be recharacterized as a Capitalized Lease Obligation, to the extent that financial reporting shall not be affected hereby.

Capitalized Leases” means all leases that have been or should be, in accordance with IFRS as in effect on the Effective Date, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with IFRS; provided, further, that all leases of such Person that are or would have been characterized as operating leases as determined in accordance with IFRS (IAS 17) as in effect prior to January 13, 2016 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease or Capitalized Lease Obligation) for purposes of this Agreement notwithstanding the fact that such obligations are required in accordance with IFRS (on a prospective or retroactive basis or otherwise) to be characterized as capitalized lease obligations in the financial statements to be delivered pursuant to the Loan Documents.

Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by Bidco and the Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with IFRS, are or are required to be reflected as capitalized costs on the consolidated balance sheet of Bidco and the Restricted Subsidiaries.

 

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Cash Equivalents” means:

(1) United States dollars;

(2) (a) Canadian Dollars, Yen, pounds sterling, eurosSterling, Euros, or any national currency of any participating member state of the EMU or (b) in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business;

(3) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof, Canada, Switzerland, a member of the European Union rated “A” (or the equivalent thereof) or better by S&P and A2 (or the equivalent thereof) or better by Moody’s, the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;

(4) certificates of deposit, time deposits and eurodollar time deposits with maturities of 24 months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding 24 months and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks or $100,000,000 (or the Dollar Equivalent as of the date of determination) in the case of non-U.S. banks (any such bank being an “Approved Bank”);

(5) repurchase obligations for underlying securities of the types described in clause (3), (4) or (7) entered into with any financial institution or recognized securities dealer meeting the qualifications specified in clause (4) above;

(6) commercial paper and variable or fixed rate notes rated at least P-2 by Moody’s or at least A-2 by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) and in each case maturing within 24 months after the date of creation thereof;

(7) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) and in each case maturing within 24 months after the date of creation thereof;

(8) readily marketable direct obligations issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority thereof or any instrumentality thereof having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) with maturities of 24 months or less from the date of acquisition;

(9) Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) with maturities of 24 months or less from the date of acquisition;

(10) readily marketable direct obligations issued by any foreign government or any political subdivision or public instrumentality thereof, in each case having an Investment Grade Rating from any of Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) with maturities of 24 months or less from the date of acquisition;

 

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(11) Investments with average maturities of 24 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency);

(12) repurchase agreements entered into by any Person with an Approved Bank, a bank or trust company or recognized securities dealer, in each case, having capital and surplus in excess of $250,000,000 or its equivalent for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of (i) the United States, (ii) Canada, (iii) Switzerland or (iv) any member nation of the European Union rated A (or the equivalent thereof) or better by S&P and A2 (or the equivalent thereof) or better by Moody’s, in which such Person shall have a perfected first priority security interest (subject to no other Liens) or title to which shall have been transferred to such Person and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations;

(13) instruments equivalent to those referred to in clauses (1) through (12) above denominated in euros or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction;

(14) investments, classified in accordance with IFRS as current assets of Bidco or any Subsidiary, in money market investment programs that are registered under the Investment Company Act of 1940 or that are administered by financial institutions having capital of at least $250,000,000 or its equivalent, and, in either case, the portfolios of which are limited such that substantially all of such investments are of the character, quality and maturity described in clauses (1) through (13) of this definition;

(15) with respect to any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America, any State, commonwealth or territory thereof or the District of Columbia: (i) obligations of the national government of the country in which such Subsidiary maintains its chief executive office and principal place of business; provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Subsidiary maintains its chief executive office and principal place of business; provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank; and

(16) investment funds investing at least 90% of their assets in securities of the types described in clauses (1) through (15) above.

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) or (2) above or the immediately preceding paragraph; provided that such amounts are converted into any currency listed in clauses (1) or (2) above or the immediately preceding paragraph as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.

 

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In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the United States of America, Cash Equivalents shall also include (a) investments of the type and maturity described in clauses (1) through (16) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (b) other short term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (16) above.

For purposes of determining the maximum permissible maturity of any investments described in this definition, the maturity of any obligation is deemed to be the shortest of the following: (i) the stated maturity date; (ii) the weighted average life (for amortizing securities); (iii) the next interest rate reset for variable rate and auction-rate obligations; or (iv) the next put exercise date (for obligations with put features).

Cash Management Obligations” means (a) obligations of Holdings, any Intermediate Parent, Bidco or any Subsidiary in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services or any automated clearing house transfers of funds and (b) other obligations in respect of netting services, employee credit or purchase card programs and similar arrangements.

Casualty Event” means any event that gives rise to the receipt by Bidco or any Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

Central Bank Rate” means the Bank of England’s Bank Rate as published by the Bank of England from time to time.

“Central Bank Rate Adjustment” means, in relation to the Central Bank Rate prevailing at close of business on any RFR Business Day, the 20% trimmed arithmetic mean (calculated by the Administrative Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Business Days for which the RFR is available.

“Central Bank Rate Spread” means, in relation to any RFR Business Day, the difference (expressed as a percentage rate per annum) calculated by the Administrative Agent of (x) the RFR for that RFR Business Day, and (x) the Central Bank Rate prevailing at close of business on that RFR Business Day.

Certain Funds Loan Party” means Initial Holdings, Bidco, the Finco Borrower and the U.S. Borrower, in each case as of the Effective Date.

Certain Funds Period” means the period from (and including) the Effective Date to (and including) 11:59 p.m., New York City time, on the earliest of (a) the date on which the Initial Term Commitments have been utilized in full and (b) the date falling 60 days after the Effective Date (or, in each case, such later time as agreed by the Administrative Agent (acting reasonably and in good faith)).

Certain Funds Utilization” means any borrowing of Initial Term Loans on or after the Effective Date and prior to the expiration of the Certain Funds Period in accordance with Section 3.17.

CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.

 

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Change in Lawshall meanmeans (i) the adoption of any law, treaty, order, policy, rule, or regulation after the Effective Date, (ii) any change in any law, treaty, order, policy, rule, or regulation or in the interpretation or application thereof by any Governmental Authority after the Effective Date or (iii) compliance by any Lender with any guideline, request, directive, or order issued or made after the Effective Date by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law), including, for avoidance of doubt, any such adoption, change or compliance in respect of (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, or directives thereunder or issued in connection therewith and (b) all requests, rules, guidelines, requirements, 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 pursuant to Basel III in each case, after the Effective Date.

Change of Control” means (a) (i) prior to an IPO, the failure of Holdings, directly or indirectly through one or more Intermediate Parents, to own all of the Equity Interests of Bidco or (ii) prior to an IPO by a Borrower, the failure of Bidco, directly or indirectly, to own all of the Equity Interests of each Borrower, (b) prior to an IPO, the failure by the Permitted Holders to own, directly or indirectly through one or more holding company parents of Holdings, beneficially and of record, Equity Interests in Holdings representing at least a majority of the aggregate ordinary voting power for the election of the Board of Directors of Holdings represented by the issued and outstanding Equity Interests in Holdings, unless the Permitted Holders otherwise have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint (and do so designate, nominate or appoint) a majority of the Board of Directors of Holdings, (c) after an IPO, (i) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group, other than the Permitted Holders (directly or indirectly, including through one or more holding companies), of Equity Interests representing 40% or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests in the IPO Entity and the percentage of the aggregate ordinary voting power so held is greater than the percentage of the aggregate ordinary voting power represented by the Equity Interests in the IPO Entity held by the Permitted Holders, unless the Permitted Holders (directly or indirectly, including through one of more holding companies) otherwise have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint (and do so designate, nominate or appoint) a majority of the Board of Directors of the IPO Entity or (ii) if the IPO Entity is a parent entity of Holdings, the failure of Holdings to remain an indirect or direct subsidiary of the IPO Entity, unless the Permitted Holders (directly or indirectly, including through one or more holding companies) otherwise have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint (and do so designate, nominate or appoint) a majority of the Board of Directors of Holdings or (d) the occurrence of a “Change of Control” (or similar event, however denominated), as defined in the documentation governing any Subordinated Indebtedness that is Material Indebtedness, unless such Subordinated Indebtedness is repaid substantially simultaneously with the occurrence of such “Change of Control” under such documentation in a manner permitted hereunder.

For purposes of this definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act, (ii) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person or “group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and (iii) if any Person or “group” includes one or more Permitted Holders, the issued and outstanding Equity Interests of Holdings, the IPO Entity or Bidco, as applicable, directly or indirectly owned by the Permitted Holders that are part of such Person or “group” shall not be treated as being owned by such Person or “group” for purposes of determining whether clause (c) of this definition is triggered).

 

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City Code” means the UK City Code on Takeovers and Mergers, as administered by the Panel.

Class” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Other Revolving Loans, Term Loans, Incremental Term Loans, Other Term Loans or Swingline Loans, (b) any Commitment, refers to whether such Commitment is a Revolving Commitment, Additional/Replacement Revolving Commitment, Other Revolving Commitment, Term Commitment or Other Term Commitment and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments. Other Term Commitments, Other Term Loans, Other Revolving Commitments (and the Other Revolving Loans made pursuant thereto), Additional/Replacement Revolving Commitments and Incremental Term Loans that have different terms and conditions (other than with respect to original issue discount or upfront fees) shall be construed to be in different Classes.

“Co-operation Agreement” means the co-operation agreement, dated as of March 25, 2019, entered into between Bidco and the Company in respect of the Acquisition.

Code” means the United States Internal Revenue Code of 1986, as amended from time to time.

Collateral” means any and all assets, whether real or personal, tangible or intangible, on which Liens are purported to be granted pursuant to the Security Documents as security for the Secured Obligations.

Collateral Agent” has the meaning given to such term in Section 8.01(b) and its successors in such capacity as provided in Article VIII.

Collateral Agreement” means the Collateral Agreement among the Loan Parties party thereto and the Collateral Agent, substantially in the form of Exhibit D.

Collateral and Guarantee Requirement” means, at any time, subject in all respects to the Agreed Security Principles (other than with respect to U.S. Restricted Subsidiaries or U.S. Loan Parties), the requirement that:

(a) the Administrative Agent shall have received from (i) Holdings, any Intermediate Parent, Bidco, each of the U.S. Restricted Subsidiaries (other than any Excluded Subsidiary) and each of the Non-U.S. Restricted Subsidiaries (other than any Non-U.S. Restricted Subsidiary that is incorporated in an Excluded Jurisdiction) that is a Guarantor Coverage Material Subsidiary or that is designated to accede as a Guarantor pursuant to Section 5.11, either (x) a counterpart of the Guarantee Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes a Restricted Subsidiary (other than an Excluded Subsidiary) or a Loan Party after the Effective Date or that ceases to be an Excluded Subsidiary, a supplement to the Guarantee Agreement, in substantially the form specified therein, duly executed and delivered on behalf of such Person, (ii) any Borrower or Guarantor that is a U.S. Loan Party, (x) a counterpart of the Collateral Agreement duly executed and delivered on behalf of such Person, (y) in the case of any Person that becomes a U.S. Loan Party after the Effective Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Collateral Agreement in substantially the form specified therein, duly executed and delivered on behalf of such Person, and (iii) any Borrower or Guarantor that is a Non-U.S. Loan Party, (x) a counterpart of each applicable Non-U.S. Security Agreement listed on Schedule 1.01(d) duly executed and delivered on behalf of such Person and (y) in the case of any Person that becomes a Non-U.S. Loan Party after the Effective Date (including

 

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by ceasing to be an Excluded Subsidiary), executed pledge and security agreement(s) in accordance with the Agreed Security Principles (including but not limited to the Overriding Principle (as defined therein)) or under Section 5.14 (as applicable), in each case under this clause (a) together with, in the case of any such Loan Documents executed and delivered after the Effective Date, to the extent reasonably requested by the Administrative Agent, opinions and documents of the type referred to in Sections 4.01(b) and 4.01(d);

(b) all outstanding Equity Interests of Bidco, each Intermediate Parent, the Borrowers, each Material Subsidiary that is a U.S. Restricted Subsidiary and each Guarantor Coverage Material Subsidiary that is a Non-U.S. Restricted Subsidiary (other than any Equity Interests constituting Excluded Assets) owned by or on behalf of any Loan Party, shall have been pledged pursuant to the applicable Security Document, and the Collateral Agent shall have received certificates, if any, or other instruments, if any, representing all such Equity Interests to the extent constituting “certificated securities” (other than such Equity Interests constituting Excluded Assets), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank or updated shareholders’ register reflecting the registration of the pledge, in each case, as is customary in that jurisdiction and required to be delivered under the Security Documents;

(c) if any Indebtedness for borrowed money of Bidco or any Restricted Subsidiary in a principal amount of $125,000,000 or more is owing by such obligor to any U.S. Loan Party and such Indebtedness is evidenced by a promissory note, such promissory note shall be pledged pursuant to the applicable Security Document, the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank; provided, however, that the foregoing delivery requirement with respect to any intercompany indebtedness may be satisfied, at Bidco’s sole discretion, by delivery of an omnibus or global intercompany note executed by all U.S. Loan Parties as payees and all such obligors as payors;

(d) (i) each Non-U.S. Loan Party shall grant to the Collateral Agent (A) fixed security over material bank accounts (without control over use) and (B) fixed security over material, structural, long-term documented intercompany loans made by such Non-U.S. Loan Party, and (ii) in the United Kingdom (and where customary in any other jurisdiction), each Non-U.S. Loan Party which is incorporated in the United Kingdom (or such other jurisdiction) shall grant to the Collateral Agent “floating charges” or such equivalent or substantially equivalent concept as may exist under relevant law; and

(e) all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements and Intellectual Property Security Agreements required by this Agreement, the Security Documents, Requirements of Law and as reasonably requested by the Administrative Agent to be filed, delivered, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, this Agreement, the Security Documents, the other provisions of the term “Collateral and Guarantee Requirement” and (in the case of the Non-U.S. Loan Parties) the Agreed Security Principles, shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or recording.

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary, if the Administrative Agent and Bidco reasonably agree in writing that the

 

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cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any adverse Tax consequences to Holdings and its Affiliates (including the imposition of withholding or other material Taxes)), outweighs the benefits to be obtained by the Lenders therefrom; (b) Liens required to be granted from time to time pursuant to the term “Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in this Agreement and the Security Documents; (c) in the case of U.S. Loan Parties, in no event shall control agreements or other control or similar arrangements be required with respect to cash, Cash Equivalents, other deposit accounts, securities and commodities accounts (including securities entitlements and related assets), letter of credit rights or other assets requiring perfection by control (but not, for avoidance of doubt, possession); (d) [reserved]; (e) the U.S. Loan Parties shall not be required, nor shall the Administrative Agent be authorized, to perfect the above-described pledges, security interests and mortgages by any means other than by (i) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) of the relevant jurisdiction, (ii) filings in United States Patent and Trademark Office and the United States Copyright Office with respect to registered and applied-for Intellectual Property as expressly required in the Loan Documents and (iii) delivery to the Collateral Agent to be held in its possession of all Collateral consisting of intercompany notes, stock certificates of any Intermediate Parent, Bidco and its Subsidiaries and instruments, in each case as expressly required in the Loan Documents; (f) in the case of the Non-U.S. Restricted Subsidiaries and the Non-U.S. Loan Parties, the foregoing provisions of this definition shall be subject in all respects to the Agreed Security Principles and (g) in no event shall the Collateral include any Excluded Assets, except at the option or in the sole discretion of Bidco. The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary or Intermediate Parent (including extensions beyond the Effective Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Effective Date) and any other obligations under this definition where it determines that such action cannot be accomplished without undue effort or expense or due to factors beyond the control of Bidco and the Restricted Subsidiaries by the time or times at which it would otherwise be required to be accomplished by this Agreement (including as set forth on Schedule 5.14) or the Security Documents.

Commitment” means (a) with respect to any Lender, its Revolving Commitment, Other Revolving Commitment of any Class, Term Commitment, Initial Term Commitment, Other Term Commitment of any Class or any combination thereof (as the context requires) and (b) with respect to any Swingline Lender, its Swingline Commitment.

“Commitment Fee Percentage” means, for any day,

(a) Commitment Fee Percentage” means, for any dayprior to the Amendment No. 4 Effective Date, the applicable percentage set forth below under the caption “Commitment Fee Percentage” based upon the Senior Secured First Lien Net Leverage Ratio as of the end of the fiscal quarter of Bidco for which consolidated financial statements have theretofore been most recently delivered pursuant to Section 5.01(a) or 5.01(b); provided that until the date of the delivery of the consolidated financial statements pursuant to Section 5.01 as of and for the fiscal year ended December 31, 2019, the Commitment Fee Percentage shall be based on the rates per annum set forth in Category 1:

 

Senior Secured First Lien Net Leverage Ratio

   Commitment Fee
Percentage
 

Category 1

Greater than 4.85 to 1.00

     0.375

Category 2

Less than or equal to 4.85 to 1.00

     0.250

 

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(b) on or after the Amendment No. 4 Effective Date, the applicable percentage set forth below under the caption “Commitment Fee Percentage” based upon the Total Net Leverage Ratio as of the end of the fiscal quarter of Bidco for which consolidated financial statements have theretofore been most recently delivered pursuant to Section 5.01(a) or 5.01(b); provided that until the date of the delivery of the consolidated financial statements pursuant to Section 5.01 as of and for the fiscal quarter ended March 31, 2024, the Commitment Fee Percentage shall be based on the rates per annum set forth in Category 2:

 

Total Net Leverage Ratio

   Commitment Fee
Percentage
 

Category 1

Greater than or equal to 3.75 to 1.00

     0.325 % 

Category 2

Greater than or equal to 3.25 to 1.00 but less than 3.75 to 1.00

     0.30 % 

Category 3

Greater than or equal to 2.75 to 1.00 but less than 3.25 to 1.00

     0.275 % 

Category 4

Less than 2.75 to 1.00

     0.25 % 

For purposes of the foregoing, each change in the Commitment Fee Percentage resulting from a change in the Senior Secured First Lien Net Leverage Ratio or the Total Net Leverage Ratio, as applicable, shall be effective during the period commencing on and including the Business Day following the date of delivery to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b) of the consolidated financial statements and related Compliance Certificate indicating such change and ending on the date immediately preceding the effective date of the next such change. Notwithstanding the foregoing, the Commitment Fee Percentage, at the option of the Administrative Agent or the Required Revolving Lenders, commencing upon written notice to Bidco, shall be based on the rates per annum set forth in Category 1 (i) at any time that an Event of Default under Section 7.01(a) has occurred and is continuing and shall continue to so apply to but excluding the date on which such Event of Default shall cease to be continuing (and thereafter, the Category otherwise determined in accordance with this definition shall apply) or (ii) if Bidco fails to deliver the consolidated financial statements required to be delivered pursuant to Section 5.01(a) or 5.01(b) or any Compliance Certificate required to be delivered pursuant hereto, in each case within the time periods specified herein for such delivery, during the period commencing on and including the day of the occurrence of a Default resulting from such failure and until the delivery thereof.

 

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Commitment Letter” means the second amended and restated commitment letter dated as of September 4, 2019, among, inter alios, the Finco Borrower, Barclays Bank PLC, Bank of America, N.A., BofA Securities, Inc. (f/k/a Merrill Lynch, Pierce, Fenner & Smith Incorporated), UBS AG, Stamford Branch, UBS Securities LLC, Banca IMI S.p.A., London Branch, BNP Paribas Fortis S.A./N.V., DNB (UK) Limited, HSBC Bank PLC, ING Bank N.V., MUFG Bank, Ltd., Natixis, New York Branch, National Westminster Bank Plc, NatWest Markets plc, Sumitomo Mitsui Banking Corporation, The Bank of Nova Scotia, J.P. Morgan AG and Mizuho Bank, Ltd.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

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

Company” means Inmarsat Group Holdings Limited (f/k/a Inmarsat plc), a limited company incorporated under the laws of England and Wales with registered number 04886072.

Compliance Certificate” means the certificate required to be delivered pursuant to Section 5.01(d).

“Conforming Changes” has the meaning assigned to such term in Section 2.13(l).

Consolidated Cash Interest Expense” means, as of any date for the applicable period ending on such date with respect to Bidco and the Restricted Subsidiaries on a consolidated basis, the amount payable with respect to such period in respect of (a) total interest expense payable in cash with respect to all outstanding Indebtedness of Bidco and the Restricted Subsidiaries including the interest component under Capitalized Leases, but excluding, to the extent included in interest expense, (i) fees and expenses (including any penalties and interest relating to Taxes) associated with the consummation of the Transactions, (ii) annual agency fees paid to the administrative agents and collateral agents under any credit facilities or other debt instruments or documents, (iii) costs associated with obtaining Swap Agreements and any interest expense attributable to the movement of the mark-to-market valuation of obligations under Swap Agreements or other derivative instruments, and any one-time cash costs associated with breakage in respect of Swap Agreements for interest rates, (iv) fees and expenses (including any penalties and interest relating to Taxes) associated with any Investment not prohibited by Section 6.04, the issuance of Equity Interests or Indebtedness, (v) any interest component relating to accretion or accrual of discounted liabilities, (vi) all non-recurring cash interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations, (vii) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses or expensing of any financing fees or prepayment or redemption premiums or penalty and any other amounts of non-cash interest (including as a result of the effects of acquisition method accounting or pushdown accounting), and (viii) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to any Permitted Acquisition or other Investment, all as calculated on a consolidated basis in accordance with IFRS minus (b) cash interest income of Bidco and the Restricted Subsidiaries earned during such period, in each case as determined in accordance with IFRS.

Consolidated Depreciation and Amortization Expense” means with respect to any Person for any period, the total amount of depreciation and amortization expense for such period, including the amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and Capitalized Software Expenditures of such Person and its Restricted Subsidiaries for such period (including such expense attributable to held-for-sale discontinued operations) determined on a consolidated basis and otherwise determined in accordance with IFRS.

 

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Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period,

(1) increased (without duplication) by the following, in each case, to the extent deducted (and not added back) in arriving at Consolidated Net Income of such Person for such period:

(a) Taxes paid (including pursuant to any Tax sharing arrangements) and provisions for Taxes of such Person and its Restricted Subsidiaries, including, in each case federal, state, provincial, local, foreign, unitary, franchise, excise, property, withholding, use and similar Taxes, including any penalties and interest, plus, without duplication, Tax Distributions paid or accrued during such period; plus

(b) Fixed Charges of such Person for such period (including (1) premium payments, debt discount, fees, charges and related expenses incurred in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, (2) the portion of rent expense with respect to such period under Capitalized Lease Obligations that is treated as interest expense in accordance with IFRS, (3) the implied interest component of synthetic leases with respect to such period, (4) net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains with respect to such obligations plus bank fees, (5) bank and letter of credit fees and costs of surety bonds in connection with financing activities, and (6) any commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility, in each case, to the extent included in Fixed Charges), together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses 1(o) through 1(z) thereof; plus

(c) Consolidated Depreciation and Amortization Expense of such Person for such period; plus

(d) any expenses or charges (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment, Restricted Payment, acquisition, disposition, recapitalization or the incurrence of Indebtedness (and any amendment or modification to any such transaction) (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the incurrence of the Loans hereunder and all Transaction Costs, (ii) such fees, expenses, or charges related to the Loan Documents and any other credit facilities, or debt issuances and (iii) any amendment or other modification of the Loans hereunder, or other indebtedness; plus

(e) restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions and adjustments to existing reserves), integration and facilities opening costs or other business optimization expenses, one-time restructuring costs incurred in connection with acquisitions made after the Effective Date, project startup costs and costs related to the closure and/or consolidation of facilities, in each case, whether or not classified as restructuring expense on the consolidated financial statements; provided that the aggregate amount added pursuant to this clause (e), when taken together with the aggregate amount of “run rate” cost savings, operating expense

 

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reductions, other operating improvements and synergies related to any Specified Transaction, any restructuring, cost saving initiative or other initiative added pursuant to clause (2)(a) below, shall not exceed 20% of Consolidated EBITDA (calculated after giving effect to such addbacks for any Test Period); plus

(f) any other non-cash charges, including, without limitation, any write offs or write downs, reducing Consolidated Net Income for such period; provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period; plus

(g) the amount of any non-controlling interest expense consisting of income attributable to non-controlling interests of third parties in any Non-Wholly Owned Subsidiary; plus

(h) the amount of board of directors fees and management, monitoring, consulting, advisory fees and other fees (including termination and transaction fees), indemnities and related expenses paid or accrued in such period under the Sponsor Management Agreement or otherwise to (or on behalf of) the Investors (including any termination fees payable in connection with the early termination of management and monitoring agreements) to the extent otherwise permitted under Section  5.17[reserved]; plus

(i) (x) start-up fees, losses, costs, charges, expenses or payments incurred in the first twelve (12) months following the commitment to open a new facility with respect to the prospecting, opening, and organizing of any new facility (including, but not limited to, the cost of feasibility studies, staff-training and recruiting costs, advertising and marketing costs, rental or mortgage costs, compensation costs, insurance costs, travel costs and other employee related costs and expenses for employees engaged in such startup activities), (y) operating losses of new facilities (including, but not limited to, allocation of corporate overhead expenses) incurred in the first twelve (12) months following the opening of such new facility and (z) expenses relating to any remodeling costs attributable to any existing facility; plus

(j) the amount of losses on dispositions of accounts receivable, Receivables Assets and related assets incurred in connection with a Receivables Facility; plus

(k) any costs or expense incurred by Bidco or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of Bidco or net cash proceeds of an issuance of Equity Interest of Bidco (other than Disqualified Equity Interests) solely to the extent that such net cash proceeds are excluded from the calculation set forth in Section 6.05(a)(A)(2) hereof; plus

(l) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of IAS 19, 26 and 37, and any other items of a similar nature; plus

 

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(m) operating expenses incurred on or prior to the Effective Date attributable to (A) salary obligations paid to employees terminated prior to the Effective Date and (B) wages paid to executives in excess of the amounts the Company and its Subsidiaries are required to pay pursuant to any employment agreements; plus

(n) any net loss from discontinued operations; plus

(o) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (3) below for any previous period and not added back; plus

(p) any loss relating to amounts paid in cash prior to the stated settlement date of any hedging obligation that has been reflected in Consolidated Net Income for such period; plus

(q) any gain relating to hedging obligations associated with transactions realized in the current period that has been reflected in Consolidated Net Income in prior periods and excluded from Consolidated EBITDA pursuant to clauses (3)(c) and (3)(d) below; plus

(r) the amount of expenses relating to payments made to option holders of any direct or indirect parent company of Bidco or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Agreement; plus

(s) earn-out and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof and purchase price adjustments, in each case in connection with acquisitions or Investments; plus

(t) Public Company Costs; plus

(2) without duplication,

(a) the amount of “run rate” cost savings, operating expense reductions, other operating improvements, revenue enhancements and synergies (other than revenue synergies) related to any Specified Transaction, the Transactions, any restructuring, cost saving initiative or other initiative projected by Bidco in good faith to be realized as a result of actions taken, committed to be taken or planned to be taken, in each case on or prior to the date that is 24eighteen (18) months after the end of the relevant period (including actions initiated prior to the Effective Date) (which cost savings, operating expense reductions, other operating improvements, revenue enhancements and synergies shall be added to Consolidated EBITDA until fully realized and calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements,

 

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revenue enhancements and synergies had been realized on the first day of the relevant period), net of the amount of actual benefits realized from such actions; provided that (A) such cost savings, operating expense reductions, other operating improvements, revenue enhancements and synergies are reasonably identifiable and quantifiable and (B) no cost savings, operating expense reductions, other operating improvements, revenue enhancements or synergies shall be added pursuant to this clause (a) to the extent duplicative of any expenses or charges relating to such cost savings, operating expense reductions, other operating improvements, revenue enhancements or or synergies that are included in any other clause of this definition or in the definition of “Pro Forma Adjustment” (it being understood and agreed that “run rate” shall mean the full recurring benefit that is associated with any action taken); provided, further, that the aggregate amount of “run rate” cost savings, operating expense reductions, other operating improvements, revenue enhancements and synergies related to any Specified Transaction, any restructuring, cost saving initiative or other initiative added pursuant to this clause (2)(a), when taken together with the aggregate amount added pursuant to clause (1)(e) above, shall not exceed 2520% of Consolidated EBITDA (calculated after giving effect to any addback under this clause (a)such addbacks for any Test Period); plus

(b) other add-backs and adjustments of the type reflected in the Model and the Information Memorandum[reserved]; plus

(c) adjustments consistent with Regulation S-X or contained in a quality of earnings report in connection with a Permitted Acquisition or Investment made available to the Administrative Agent conducted by financial advisors (which are either nationally recognized or reasonably acceptable to the Administrative Agent (it being understood and agreed that any of the “Big Four” accounting firms are acceptable)); plus;

(d) the amount of reasonably identifiable and factually supportable “run-rate” Consolidated EBITDA (calculated on a pre-tax basis) that is projected by Bidco in good faith to be derived from New Contracts (calculated on a Pro Forma Basis as though such Consolidated EBITDA had been realized on the first day of such period) within 36 months of the entry into such New Contract net of the amount of actual earnings realized prior to or during such period from such New Contracts and without giving any benefit for any period after the termination of such New Contract; plus

(e) the amount of reasonably identifiable and factually supportable “run-rate” Consolidated EBITDA (calculated on a pre-tax basis) that is projected by Bidco in good faith to be derived from any anticipated revenue enhancements from the launch of new satellites (calculated on a Pro Forma Basis as though such revenue enhancements had been realized on the first day of such period);

(3) decreased (without duplication) by the following, in each case, to the extent included in determining Consolidated Net Income of such Person for such period:

(a) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period; plus

(b) the amount of any non-controlling interest consisting of loss attributable to non-controlling interests of third parties in any Non-Wholly Owned Subsidiaries; plus

 

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(c) any gain relating to amounts received in cash prior to the stated settlement date of any hedging obligation that has been reflected in Consolidated Net Income in such period; and

(d) any loss relating to hedging obligations associated with transactions realized in the current period that has been reflected in Consolidated Net Income in prior periods and excluded from Consolidated EBITDA pursuant to clauses (1)(p) and (1)(q) above;

(4) increased by any income from investments recorded using the equity method of accounting or the cost method of accounting, without duplication and to the extent not included in arriving at Consolidated Net Income, except to the extent such income was attributable to income that would be deducted pursuant to clause (3) above if it were income of Bidco or any of its Restricted Subsidiaries;

(5) decreased by any losses from investments recorded using the equity method of accounting or the cost method of accounting, without duplication and to the extent not deducted in arriving at Consolidated Net Income, except to the extent such loss was attributable to losses that would be added back pursuant to clause (1) above if it were a loss of Bidco or any of its Restricted Subsidiaries;

(6) increased by an amount, with respect to investments recorded using the equity method of accounting or the cost method of accounting and without duplication of any amounts added pursuant to clause (4) above, equal to the amount attributable to each such investment that would be added to Consolidated EBITDA pursuant to clause (1) above if instead attributable to Bidco or a Subsidiary, pro-rated according to Bidco’s or the applicable Subsidiary’s percentage ownership in such investment;

(7) decreased by an amount, with respect to investments recorded using the equity method of accounting or the cost method of accounting and without duplication of any amounts deducted pursuant to clause (5) above, equal to the amount attributable to each such investment that would be deducted from Consolidated EBITDA pursuant to clause (3) above if instead attributable to Bidco or a Subsidiary, pro-rated according to Bidco’s or the applicable Subsidiary’s percentage ownership in such investment;

in each case, as determined on a consolidated basis for such Person in accordance with IFRS; provided that:

(I) to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA currency translation gains and losses related to currency remeasurements of assets or liabilities (including the net loss or gain resulting from hedging agreements for currency exchange risk and revaluations of intercompany balances);

(II) to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any adjustments resulting from the application of IFRS 9,

(III) there shall be included in determining Consolidated EBITDA for any period, without duplication, (A) to the extent not included in Consolidated Net Income, the Acquired EBITDA of any Person, property, business or asset or attributable to any Person, property, business or asset acquired by Bidco or any Restricted Subsidiary during such period (other than any

 

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Unrestricted Subsidiary) to the extent not subsequently sold, transferred or otherwise disposed of (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired, including pursuant to the Transactions or pursuant to a transaction consummated prior to the Effective Date, and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical Pro Forma Basis and (B) an adjustment in respect of each Pro Forma Entity equal to the amount of the Pro Forma Adjustment with respect to such Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) as specified in the Pro Forma Adjustment certificate delivered to the Administrative Agent (for further delivery to the Lenders); provided that with respect to any determination to be made on a Pro Forma Basis, at the election of Bidco, such Acquired EBITDA or such adjustment shall not be required to be included for any Pro Forma Entity to the extent the aggregate consideration paid in connection with the acquisition of such Acquired Entity or Business or the fair market value of such Converted Restricted Subsidiary, in the aggregate, is less than $375,000,000;

(IV) there shall be (A) to the extent included in Consolidated Net Income, excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than any Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations in accordance with IFRS (other than (x) if so classified on the basis that it is being held for sale unless such sale has actually occurred during such period and (y) for periods prior to the applicable sale, transfer or other disposition, if the Disposed EBITDA of such Person, property, business or asset is positive (i.e., if such Disposed EBITDA is negative, it shall be added back in determining Consolidated EBITDA for any period)) by Bidco or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold, transferred or otherwise disposed of, closed or classified, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, disposition, closure, classification or conversion) determined on a historical Pro Forma Basis and (B) to the extent not included in Consolidated Net Income, included in determining Consolidated EBITDA for any period in which a Sold Entity or Business is disposed, an adjustment equal to the Pro Forma Disposal Adjustment with respect to such Sold Entity or Business (including the portion thereof occurring prior to such disposal); and

(V) to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA any expense (or income) as a result of adjustments recorded to contingent consideration liabilities relating to the Transactions or any Permitted Acquisition (or other Investment not prohibited under this Agreement).

Notwithstanding the foregoing, Consolidated EBITDA shall be deemed to equal (a) $189.95 million for the fiscal quarter ended September 30, 2018, (b) $174.05 million for the fiscal quarter ended December 31, 2018, (c) $188.85 million for the fiscal quarter ended March 31, 2019 and (d) $200.60 million for the fiscal quarter ended June 30, 2019 (it being understood that such amounts are subject to adjustments, as and to the extent otherwise contemplated in this Agreement, in connection with any Pro Forma Adjustment or any calculation on a Pro Forma Basis); provided that such amounts of Consolidated EBITDA for any such fiscal quarter shall be adjusted to include, without duplication, any cost savings that would otherwise be included pursuant to clause (1)(i) of this definition.

 

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Consolidated Interest Expense” means, with respect to any Person for any period, without duplication:

(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (i) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (iii) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to IFRS), (iv) the interest component of Capitalized Lease Obligations, and (v) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (o) all non-recurring cash interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations, (p) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to any Investment, (q) any prepayment premium or penalty, (r) costs associated with obtaining Hedging Obligations and breakage costs in respect of Hedging Obligations related to interest rates, (s) any accretion of accrued interest on discounted liabilities (other than Indebtedness except to the extent arising from the application of purchase accounting), (t) penalties and interest relating to Taxes, (u) accretion or accrual of discounted liabilities not constituting Indebtedness, (v) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (w) any “additional interest” with respect to debt securities, (x) [reserved], (y) any amortization or expensing of bridge, commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility; plus

(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

(3) interest income for such period.

For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with IFRS.

Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income, of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with IFRS; provided, however, that, without duplication,

(1) any extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including the Transaction Costs or any multi-year strategic cost-saving initiatives, any unusual or non-recurring operating expenses directly attributable to the implementation of cost savings initiatives and any accruals or reserves in respect of any extraordinary, non-recurring or unusual items), severance, relocation costs, integration and facilities’ opening costs and other business optimization expenses (including related to new product introductions), recruiting fees, restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions after the Effective Date and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, signing costs, retention or completion bonuses, transition costs, costs related to closure/consolidation of facilities, internal costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities) shall be excluded;

 

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(2) the cumulative effect of a change in accounting principles during such period shall be excluded;

(3) any income (loss) from disposed, abandoned or discontinued operations and any gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of);

(4) any gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions, disposals or abandonments other than in the ordinary course of business, as determined in good faith by Bidco, shall be excluded;

(5) the Net Income for such period of any Person that is an Unrestricted Subsidiary, or any Person that is not a Subsidiary or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of such other Person shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents to such other Person or a Restricted Subsidiary of such other Person by such Person in such period;

(6) solely for the purpose of determining the amount available for Restricted Payments under Section 6.05(a)(A)(1) hereof, the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior Governmental Approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders other than (a) restrictions that have been waived or otherwise released, (b) restrictions pursuant to the Loan Documents or this Agreement and (c) restrictions specified in clause (xviii) of Section 6.06(b) hereof, provided that Consolidated Net Income of Bidco shall be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to Bidco or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein;

(7) effects of adjustments (including the effects of such adjustments pushed down to Bidco and its Restricted Subsidiaries) in the inventory, property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue, debt line items and other non-cash charges in such Person’s consolidated financial statements pursuant to IFRS and related authoritative pronouncements resulting from the application of recapitalization, purchase or acquisition method accounting in relation to the Transactions or any consummated acquisition or Investment or the amortization or write-off of any amounts thereof, net of Taxes, shall be excluded;

(8) any income (loss) from the early extinguishment or conversion of (a) Indebtedness, (b) Hedging Obligations or (c) other derivative instruments shall be excluded;

 

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(9) any impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to goodwill and other intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant to IFRS, and the amortization of intangibles arising pursuant to IFRS shall be excluded;

(10) (i) any non-cash compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive programs, (ii) income (loss) attributable to deferred compensation plans or trusts, (iii) any cash charges associated with the rollover, acceleration or payout of Equity Interests by management of Bidco or any of its direct or indirect parent companies in connection with the Transactions and (iv) the amount of any expense required to be recorded as compensation expense related to contingent transaction consideration shall be excluded;

(11) any fees, expenses (including any transaction or retention bonus or similar payment) or charges incurred during such period, or any amortization thereof for such period, in connection with any acquisition, non-recurring costs to acquire equipment to the extent not capitalized in accordance with IFRS, Investment (including Investments in the form of Recruitment Notes and associated fees and expenses paid to recruiters in connection therewith), recapitalization, asset disposition, non-competition agreement, issuance, incurrence or repayment of Indebtedness (including such fees, expenses or charges related to the offering of the Loans) issuance of Equity Interests, refinancing transaction or amendment or modification of or waiver or consent relating to any debt instrument (including the obligations under this Agreement and the other Loan Documents) and including, in each case, without limitation, the Transaction Costs and any such transaction consummated prior to the Effective Date and any such transaction undertaken but not completed and any charges or non-recurring merger or amalgamation costs incurred during such period as a result of any such transaction, in each case whether or not successful (including, for avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with IFRS), shall be excluded;

(12) accruals and reserves that are established or adjusted as a result of the Transactions or an Investment permitted under this Agreement in accordance with IFRS (including any adjustment of estimated payouts on earn-outs), or changes as a result of the adoption or modification of accounting policies during such period shall be excluded;

(13) any expenses, charges, lost profits or losses that are covered by indemnification, insurance or other reimbursement provisions in connection with the Transactions, any investment, acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as Bidco has made a determination that a reasonable basis exists for indemnification, insurance or reimbursement and only to the extent that such amount is (i) not denied by the applicable carrier (without any right of appeal thereof) within 180 days and (ii) in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days), shall be excluded;

(14) to the extent covered by insurance and actually reimbursed, or, so long as Bidco has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 day period), expenses, charges or losses with respect to liability or casualty events or business interruption shall be excluded;

 

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(15) any net pension costs or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost), and any other non-cash items of a similar nature, shall be excluded;

(16) any Transaction Costs shall be excluded;

(17) any income (loss) from Investments recorded using the equity method of accounting (but including any cash dividends or distributions actually received by Bidco or any Restricted Subsidiary in respect of such investment) shall be excluded;

(18) the following items shall be excluded:

(a) any non-cash gain or loss (after any offset) attributable to the mark to market movement in the valuation of Hedging Obligations or other derivative instruments pursuant to IFRS 9 or mark to market movement of other financial instruments pursuant to IFRS 9 shall be excluded; provided that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period,

(b) any non-cash gain or loss (after any offset) from currency translation and transaction gains or losses including those related to currency remeasurements of Indebtedness (including any net gain or loss resulting from hedging agreements for currency exchange risk and revaluations of intercompany balances) any other monetary assets and liabilities; and

(19) any non-cash expenses, accruals or reserves related to adjustments to historical tax exposures (provided, in each case, that the cash payment in respect thereof in such future period shall be subtracted from Consolidated Net Income for the period in which such cash payment was made) shall be excluded.

In addition, to the extent not already included in Consolidated Net Income, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted hereunder.

Notwithstanding the foregoing, for the purpose of Section 6.05 hereof only (other than clause (A)(4) of Section 6.05(a)), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by Bidco and its Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from Bidco and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments by Bidco or any of its Restricted Subsidiaries, any sale or other disposition of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under Section 6.05(a)(A)(4) hereof.

 

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Consolidated Senior Secured First Lien Indebtedness” means, as of any date of determination, the aggregate amount of Consolidated Total Indebtedness of Bidco and the Loan Parties outstanding on such date that is not subordinated in right of payment to the Loan Document Obligations and that is secured by a Lien on the Collateral on an equal priority basis with Liens on the Collateral securing the Loan Document Obligations (including, for avoidance of doubt, the Loan Document Obligations), determined on a consolidated basis in accordance with IFRS.

Consolidated Senior Secured Indebtedness” means, as of any date of determination, the aggregate amount of Consolidated Total Indebtedness of Bidco and the Loan Parties outstanding on such date that is not subordinated in right of payment to the Loan Document Obligations and that is secured by a Lien on the Collateral, determined on a consolidated basis in accordance with IFRS.

Consolidated Total Indebtedness” means, as of any date of determination, the aggregate amount of Indebtedness of Bidco and the Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with IFRS (but excluding the effects of any discounting of Indebtedness resulting from the application of the acquisition method accounting in connection with the Transactions or any Permitted Acquisition (or other Investment not prohibited hereunder)) and consisting only of Indebtedness for borrowed money, drawn obligations under letters of credit that have not been reimbursed after two (2) Business Days, Capitalized Lease Obligations and, debt obligations evidenced by promissory notes or similar instruments and Preferred Stock of Restricted Subsidiaries that are not Guarantors, but excluding any obligations under or in respect of Receivables Facilities and excluding outstanding Revolving Loans used to finance seasonal working capital needs of Bidco and its Subsidiaries (as reasonably determined by Bidco in its reasonable discretion), minus the lesser of (i) the aggregate amount of cash and Cash Equivalents (in each case, free and clear of all liens, other than Liens permitted pursuant to Section 6.02), excluding cash and Cash Equivalents that are listed as “restricted” on the consolidated balance sheet of Bidco and the Restricted Subsidiaries as of such date, but including cash and Cash Equivalents subject to a Permitted Lien (which may also secure other Indebtedness secured by a pari passu or junior lien on the Collateral along with the Secured Obligations) and (ii) $550,000,000.

Consolidated Working Capital” means, at any date, the excess of (a) the sum of all amounts (other than cash and Cash Equivalents) that would, in conformity with IFRS, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of Bidco and the Restricted Subsidiaries at such date, excluding the current portion of deferred income taxes over (b) the sum of all amounts that would, in conformity with IFRS, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of Bidco and the Restricted Subsidiaries on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans, Senior Secured Notes and obligations under Letters of Credit to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income taxes; provided that, for purposes of calculating Excess Cash Flow, increases or decreases in working capital (A) arising from acquisitions or dispositions by Bidco and the Restricted Subsidiaries shall be measured from the date on which such acquisition or disposition occurred until the first anniversary of such acquisition or disposition with respect to the Person subject to such acquisition or disposition and (B) shall exclude (I) the impact of non-cash adjustments contemplated in the Excess Cash Flow calculation, (II) the impact of adjusting items in the definition of “Consolidated Net Income” and (III) any changes in current assets or current liabilities as a result of (x) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under hedging agreements or other derivative obligations, (y) any reclassification in accordance with IFRS of assets or liabilities, as applicable, between current and noncurrent or (z) the effects of acquisition method accounting.

Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,

 

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(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,

(2) to advance or supply funds

(a) for the purchase or payment of any such primary obligation, or

(b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or

(3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.

Contract Consideration” has the meaning assigned to such term in the definition of “Excess Cash Flow”.

Contributed Holdings Investments” has the meaning assigned to such term in Section 6.05(b)(xv)(I).

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

Controlled Investment Affiliate” means, as to any Person, any other Person, other than any Investor, which directly or indirectly is in control of, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in Bidco and/or other companies.

Converted Restricted Subsidiary” has the meaning given such term in the definition of “Consolidated EBITDA.”

Converted Unrestricted Subsidiary” has the meaning given such term in the definition of “Consolidated EBITDA.”

Convertible Bonds” means the $650,000,000 3.875% convertible bonds due 2023 issued by Inmarsat Group Holdings Limited (f/k/a Inmarsat plc).

Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

Court Order” means the order of the High Court of Justice of England and Wales sanctioning the Scheme.

“Co-operation Agreement” means the co-operation agreement, dated as of March 25, 2019, entered into between Bidco and the Company in respect of the Acquisition.

 

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Credit Agreement Refinancing Indebtedness” means Indebtedness issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans, Revolving Loans (or unused Revolving Commitments) or Incremental Equivalent Debt (“Refinanced Debt”); provided that such exchanging, extending, renewing, replacing or refinancing Indebtedness (a) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt (plus any premium, accrued interest and fees and expenses incurred in connection with such exchange, extension, renewal, replacement or refinancing), (b) except in the case of any Designated Earlier Maturing Debt, does not mature earlier than or, except in the case of Revolving Commitments, have a Weighted Average Life to Maturity shorter than the Refinanced Debt (except in the case of customary bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent refinancing that does not mature earlier than the Refinanced Debt and does not have a shorter Weighted Average Life to Maturity than the Refinanced Debt), (c) shall not be guaranteed by any entity that is not a Loan Party, (d) in the case of any secured Indebtedness (i) is not secured by any assets not securing the Secured Obligations and (ii) if not comprising Other Term Loans or Other Revolving Commitments hereunder that are secured on a pari passu basis with the other Secured Obligations, is subject to a Customary Intercreditor Agreement(s) and (e) otherwise has terms and conditions that shall be reasonably satisfactory to Bidco and the lenders providing such Credit Agreement Refinancing Indebtedness. Notwithstanding anything to the contrary, no Credit Agreement Refinancing Indebtedness shall be subject to any “most favored nation” pricing adjustments set forth in this Agreement.

Cure Amount” has the meaning assigned to such term in Section 7.02(a).

Cure Right” has the meaning assigned to such term in Section 7.02(a).

Customary Intercreditor Agreement” means (a) to the extent executed in connection with the incurrence of Indebtedness secured by Liens on the Collateral which are intended to rank equal in priority to the Liens on the Collateral securing the Secured Obligations, at the option of Bidco, either (i) an intercreditor agreement substantially in the form of the Pari Passu Intercreditor Agreement (with such modifications as may be necessary or appropriate in light of prevailing market conditions and reasonably acceptable to the Administrative Agent) or (ii) a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and Bidco, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral securing the Secured Obligations and (b) to the extent executed in connection with the incurrence of Indebtedness secured by Liens on the Collateral which are intended to rank junior to the Liens on the Collateral securing the Secured Obligations, at the option of Bidco, either (i) an intercreditor agreement substantially in the form of the Second Lien Intercreditor Agreement (with such modifications as may be necessary or appropriate in light of prevailing market conditions and reasonably acceptable to the Administrative Agent) or (ii) a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and Bidco, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior to the Liens on the Collateral securing the Secured Obligations. With regard to any changes in light of prevailing market conditions as set forth above in clause (a)(i) or (b)(i) or with regard to clause (a)(ii) or (b)(ii), such changes or agreement, as applicable, shall be posted to the Lenders not less than five (5) Business Days before execution thereof and, if the Required Lenders shall not have objected to such changes within three (3) Business Days after posting, then the Required Lenders shall be deemed to have agreed that the Administrative Agent’s entry into such intercreditor agreement (including with such changes) is reasonable and to have consented to such intercreditor agreement (including with such changes) and to the Administrative Agent’s execution thereof.

Daily Simple RFRshall meanmeans, for any day (a “RFR Interest Day”), an interest, with respect to any Obligations consisting of any interest, fees or other amounts denominated in (a) Sterling, the rate per annum equal to (x) SONIA for the day that is five Business Days prior to (i) if such

 

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RFR Interest Day is a Business Day, such RFR Interest Day or (ii) if such RFR Interest Day is not a Business Day, the Business Day immediately preceding such RFR Interest Day (in each case of clauses (i) and (ii), such day being the “RFR Lookback Day” or (y) as otherwise determined pursuant to Section 2.13the definition thereof, and (b) Swiss Francs, the rate per annum equal to SARON determined pursuant to the definition thereof; provided, that, if any Daily Simple RFR (or any applicable successor rate) for any day shall not be (x) less than 1.00% per annum with respect to any Amendment No. 1 Refinancing Term Loans and (y) less than 0.00% per annum with respect to any Revolving Loansshall be less than 0.00%, such rate shall be deemed 0.00% for purposes of this Agreement. Any change in any Daily Simple RFR shall be effective from and including the date of such change without further notice.

Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, the term “Daily Simple RFR” may be amended to refer to (x) a comparable successor rate that is the prevailing market standard for credit agreements of this type for the replacement of or successors to the SONIA rate in the U.S. syndicated loan market as reasonably determined by the Administrative Agent and the Borrower with the consent of (i) only the Administrative Agent (but not, for the avoidance of doubt, any other Lender) (such consent not to be unreasonably withheld or delayed) and Bidco (such consent not to be unreasonably withheld or delayed) or (ii) the Required Lenders and Bidco, and the Administrative Agent shall promptly notify each Lender of such amendment.

Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion; provided that Daily Simple SOFR (or any applicable successor rate) for any day shall not be less than (a) 1.00% per annum, with respect to any Amendment No. 1 Refinancing Term Loans and, (b) 0.50% per annum, with respect to any Amendment No. 4 Term Loans and (c) 0.00% per annum, with respect to any Revolving Loans.

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

Default” means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

Defaulting Lender” means, subject to Section 2.21(b), any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit or Swingline Loans, within two (2) Business Days of the date required to be funded by it hereunder, (b) has notified Bidco, the Administrative Agent, any Issuing Bank, any Swingline Lender or any Lender that it does not intend to comply with its funding obligations or has made a public statement or provided any written notification to any Person to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by the Administrative Agent (whether acting on its own behalf or at the reasonable request of Bidco (it being understood that the Administrative Agent shall comply with any such reasonable request)) or any Issuing Bank, to confirm in a manner satisfactory to the Administrative Agent, such Issuing Bank and Bidco that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and Bidco), or (d) has, or has a direct or indirect parent company that, other than via an Undisclosed Administration, (i) has become or is insolvent, (ii) has become the

 

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subject of a proceeding under any Debtor Relief Law, (iii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iv) has taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (v) has become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority, where such ownership interest or proceeding does not result in or provide such Lender or Person with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender or Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Lender or Person.

Defaulting Lender Fronting Exposure” means, at any time there is a Revolving Lender that is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage of the LC Exposure with respect to the Letters of Credit issued by such Issuing Bank, other than LC Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms of this Agreement and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans, other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms of this Agreement.

Designated Earlier Maturing Debt” means (x) any (i) Incremental Term Loans, (ii) Incremental Equivalent Debt, (iii) Credit Agreement Refinancing Indebtedness (other than Other Revolving Commitments) and/or (iv) other Indebtedness, in each case, incurred to consummate a Permitted Acquisition or other Investment not prohibited by this Agreement and (y) any (i) Incremental Term Loans, (ii) Incremental Equivalent Debt, (iii) Credit Agreement Refinancing Indebtedness (other than Other Revolving Commitments) and/or (iv) other Indebtedness designated by Bidco to the Administrative Agent that has a maturity date earlier than the Term Maturity Date and/or a shorter Weighted Average Life to Maturity than the remaining Amendment No. 1 Refinancing Term Loans; provided that at the time of any incurrence of such Indebtedness pursuant to this clause (y), the aggregate principal amount of all such Indebtedness shall not exceed the greater of (x) $750,000,000 and (y) Consolidated EBITDA for the most recently ended Test Period as of such date, calculated on a Pro Forma Basis.

Designated Non-cash Consideration” means the fair market value of non-cash consideration received by Bidco or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an officer’s certificate, setting forth the basis of such valuation, executed by a Financial Officer of Bidco or a Restricted Subsidiary, less the amount of cash or Cash Equivalents received in connection with a subsequent sale, redemption or repurchase of or collection or payment on such Designated Non-cash Consideration.

Designated Alternative Security Debt” means any (i) Incremental Term Loans, (ii) Incremental Equivalent Debt, (iii) Credit Agreement Refinancing Indebtedness and/or (iv) other Indebtedness designated by Bidco to the Administrative Agent that is guaranteed by any entity that is not a Loan Party or secured by any assets other than Collateral; provided that at the time of any incurrence of such Indebtedness, the aggregate principal amount of all such Indebtedness shall not exceed the greater of (x) $375,000,000 and (y) 50% of Consolidated EBITDA for the most recently ended Test Period as of such date, calculated on a Pro Forma Basis.

 

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Designated Preferred Stock” means Preferred Stock of Bidco or any direct or indirect parent company thereof (in each case other than Disqualified Equity Interests) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by Bidco or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an officer’s certificate executed by a Financial Officer of Bidco, a Restricted Subsidiary or the applicable parent corporation thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (A) of Section 6.05(a) hereof.

Discount Prepayment Accepting Lender” has the meaning assigned to such term in Section 2.10(a)(ii)(B)(2).

Discount Range” has the meaning assigned to such term in Section 2.10(a)(ii)(C)(1).

Discount Range Prepayment Amount” has the meaning assigned to such term in Section 2.10(a)(ii)(C)(1).

Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.10(a)(ii)(C) substantially in the form of Exhibit L.

Discount Range Prepayment Offer” means the irrevocable written offer by a Term Lender, substantially in the form of Exhibit M, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.

Discount Range Prepayment Response Date” has the meaning assigned to such term in Section 2.10(a)(ii)(C)(1).

Discount Range Proration” has the meaning assigned to such term in Section 2.10(a)(ii)(C)(3).

Discounted Prepayment Determination Date” has the meaning assigned to such term in Section 2.10(a)(ii)(D)(3).

Discounted Prepayment Effective Date” means in the case of a Borrower Offer of Specified Discount Prepayment or Borrower Solicitation of Discount Range Prepayment Offer, five (5) Business Days following the receipt by each relevant Term Lender of notice from the Auction Agent in accordance with Section 2.10(a)(ii)(B), Section 2.10(a)(ii)(C) or Section 2.10(a)(ii)(D), as applicable unless a shorter period is agreed to between the Borrower and the Auction Agent.

Discounted Term Loan Prepayment” has the meaning assigned to such term in Section 2.10(a)(ii)(A).

Disposed EBITDA” means, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period through (but not after) the date of such disposition, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to Bidco and the Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” (and in the component financial definitions used therein) were references to such Sold Entity or Business and its subsidiaries or to such Converted Unrestricted Subsidiary and its subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary.

disposition” has the meaning assigned to such term in clause (1) of the definition of “Asset Sale”.

 

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Disqualified Equity Interests” means, with respect to any Person, any Equity Interests of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the earlier of the maturity date of the Loans or the date the Loans are no longer outstanding; provided, however, that any Equity Interests held by any future, current or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates (excluding the Investors (but not excluding any future, current or former employee, director, officer, manager or consultant)) or Immediate Family Members), of Bidco, any of its Subsidiaries, any of its direct or indirect parent companies or any other entity in which Bidco or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the board of directors of Bidco or a Restricted Subsidiary (or the compensation committee thereof), in each case pursuant to any stock subscription or shareholders’ agreement, management equity plan or stock option plan or any other management or employee benefit plan or agreement shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by Bidco or its Subsidiaries or in order to satisfy applicable statutory or regulatory obligations. Notwithstanding the preceding sentence, any Equity Interests that would constitute Disqualified Equity Interests solely because the holders of the Equity Interests have the right to require Bidco or a Subsidiary to repurchase such Equity Interests upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Equity Interests if the terms of such Equity Interests (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide that Bidco or such Subsidiary may not repurchase or redeem any such Equity Interests (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provisions unless such repurchase or redemption complies with the terms of this Agreement. The amount of Disqualified Equity Interests deemed to be outstanding at any time for purposes of this Agreement shall be the maximum amount that Bidco and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Equity Interests, exclusive of accrued dividends.

Disqualified Lenders” means (i) those Persons identified by Bidco or a Restricted Subsidiary to the Administrative Agent in writing prior to March 235, 20192024 as being “Disqualified Lenders,” (ii) those Persons who are competitors of Bidco and its Subsidiaries (other than any bona fide diversified debt investment fund) identified by the Investors, Bidco or a Restricted Subsidiary to the Administrative Agent from time to time in writing (including by email) which designation shall become effective two (2) days after delivery of each such written designation to the Administrative Agent, but which shall not apply retroactively to disqualify any persons that have previously acquired an assignment or participation interest in any Loan, (iii) Excluded Affiliates and (iv) in the case of each Person identified pursuant to clause (ii) above, any of their Affiliates that are either (x) identified in writing by the Investors, Bidco or a Restricted Subsidiary to the Administrative Agent from time to time or (y) are known or reasonably identifiable as an Affiliate of such Person (other than Affiliates that are bona fide diversified debt investment funds). Upon inquiry by any Lender to the Administrative Agent as to whether a specified potential assignee or prospective participant is on the list of Disqualified Lenders, the Administrative Agent shall be permitted to disclose to such Lender whether such specific potential assignee or prospective participant is on the list of Disqualified Lenders to such Lender.

Division” has the meaning assigned to such term in Section 1.10.

Dollar Equivalent” means, on any date of determination, (a) with respect to any amount denominated in dollars, such amount, and (b) with respect to any amount in any Alternative Currency or any other currency, the equivalent in dollars of such amount, as determined by the Administrative Agent or the applicable Issuing Bank, as applicable, pursuant to Section 1.09 using the Spot Rate with respect to such currency at the time in effect under the provisions of such Section.

 

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dollars” or “$” refers to lawful money of the United States of America.

Domestic Foreign Holdco” means any Subsidiary that is not a CFC, substantially all of whose assets (directly and/or indirectly through one or more Subsidiaries) are capital stock (and, if applicable, debt) of one or more Subsidiaries that are (1) CFCs that are direct or indirect Subsidiaries of a Domestic Subsidiary and/or (2) other Domestic Foreign Holdcos.

Domestic Subsidiary” means any Subsidiary that is organized under the law of the United States, any state thereof or the District of Columbia.

Early Opt-in Election shall meanmeans, with respect to any Relevant RateTerm SOFR, the occurrence of:

(1) a notification by the Administrative Agent to (or the request by Bidco and the Borrower to the Administrative Agent to notify) each of the other parties hereto that U.S. syndicated credit facilities denominated in the applicable Agreed Currency being executed at such time, or that include language similar to that contained in Section 2.13 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace such Relevant RateTerm SOFR, and

(2) the joint election by the Administrative Agent, Bidco and the Borrower to declare that an Early Opt-in Election for such Relevant RateTerm SOFR has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to Bidco and the Borrower and the Lenders.

ECF Percentage” means, with respect to the prepayment required by Section 2.10(d) with respect to any fiscal year of Bidco, if the Senior Secured First Lien Net Leverage Ratio (prior to giving effect to the applicable prepayment pursuant to Section 2.10(d), but after giving effect to any voluntary prepayments made pursuant to Section 2.10(a) or otherwise in a manner not prohibited by Section 9.04(g) prior to the date of such prepayment) as of the end of such fiscal year is (a) greater than 4.604.10 to 1.00, 50% of Excess Cash Flow for such fiscal year, (b) greater than 4.103.60 to 1.00 but less than or equal to 4.604.10 to 1.00, 25% of Excess Cash Flow for such fiscal year and (c) less than or equal to 4.103.60 to 1.00, 0% of Excess Cash Flow for such fiscal year.

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 clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

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

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

Effective Date” means December 12, 2019.

 

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Effective Yield” means, as to any Indebtedness, the effective yield on such Indebtedness in the reasonable determination of the Administrative Agent and Bidco and consistent with generally accepted financial practices, taking into account the applicable interest rate margins, any interest rate floors (the effect of which floors shall be determined in a manner set forth in the proviso below) or similar devices and all fees, including upfront or similar fees or original issue discount paid with respect to the initial incurrence of any Class of Loans or series of Indebtedness, as applicable (and, with respect to the Amendment No. 1 Refinancing Term Loans, assuming that such Loans were issued with the same upfront fees and original issue discount as the Initial Term Loans) (amortized over the shorter of (a) the remaining Weighted Average Life to Maturity of such Indebtedness and (b) the four years following the date of incurrence thereof) payable generally to lenders or other institutions providing such Indebtedness, but excluding any arrangement, syndication, commitment, prepayment, structuring, ticking or other similar fees payable in connection therewith that are not generally shared with the relevant Lenders (and, if applicable, consent fees for an amendment paid generally to consenting Lenders and, solely for purposes of determining the effective yield for purposes of Section 2.10(a)(i), any original issue discount or upfront fees payable in connection with the Initial Term Loans issued on the Effective Date); provided that with respect to any Indebtedness that includes a “LIBOR floor”, “SOFR floor” or “Base Rate floor” or other benchmark floor (i) to the extent that the LIBO Rate, Term SOFR, or the Alternate Base Rate or Daily Simple RFR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (ii) to the extent that the LIBO Rate, Term SOFR, or the Alternate Base Rate or Daily Simple RFR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.

“Electronic Copy” shall have the meaning specified in Section 9.06.

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

Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (other than Holdings, any Intermediate Parent, Bidco or any of their respective Affiliates), other than, in each case, (i) a natural person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of one or more natural persons), (ii) a Defaulting Lender or (iii) a Disqualified Lender. Notwithstanding the foregoing, each Loan Party and each Lender acknowledges and agrees that the Administrative Agent shall have no liability with respect to any assignment made to a Disqualified Lender unless (i) the Administrative Agent has acted with gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment) and (ii) Bidco has not consented to such assignment or is not deemed to have consented to such assignment to the extent required by Section 9.04(b)..

EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

Environmentshall meanmeans ambient air, indoor air, surface water, groundwater, drinking water, land surface, sediments, and subsurface strata and natural resources such as wetlands, flora and fauna.

Environmental Laws” means all applicable Requirements of Law relating to the protection of the environment, to preservation or reclamation of natural resources, to the Release or threatened Release of any Hazardous Material, or (to the extent relating to exposure to Hazardous Materials) to health or safety matters.

 

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Environmental Liability” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, administrative oversight costs, consultants’ fees, fines, penalties and indemnities) resulting from or based upon (a) any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials or (d) the Release or threatened Release of any Hazardous Materials.

Equity Contributions” means the aggregate amount of investments (made on or prior to the relevant date of determination) in cash or in kind in the form of equity interests (including share subscriptions, share premium and/or contribution to capital reserves) or Subordinated Shareholder Liabilities by the Investors (as defined in this Agreement as of the Effective Date) and Holdings (or any of their parent entities) (directly or indirectly) to Bidco.

Equity Interests” means shares of Capital Stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person.

Equity Offering” means any public or private sale of common stock or Preferred Stock of Bidco or any of its direct or indirect parent companies (excluding Disqualified Equity Interest), other than:

(1) public offerings with respect to Bidco’s or any direct or indirect parent company’s common stock registered on Form S-8;

(2) issuances to any Subsidiary of Bidco; and

(3) any such public or private sale that constitutes an Excluded Contribution or a Contributed Holdings Investment.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or 414(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

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

 

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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.

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.

“EURIBOR Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros and for any Interest Period, the rate per annum equal to the Euro Interbank Offered Rate, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the day that is two TARGET Days preceding the first day of such Interest Period with a term equivalent to such Interest Period; provided, that if the EURIBOR Rate shall be less than 0.00%, the EURIBOR Rate shall be deemed to be 0.00% for purposes of this Agreement.

Euro” and “” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

“Eurodollar” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

Event of Default” has the meaning assigned to such term in Section 7.01.

Excess Cash Flow” means, for any period, an amount equal to the excess of:

 

  (a)

the sum, without duplication, of:

(i) Consolidated Net Income for such period;

(ii) an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income;

(iii) decreases in Consolidated Working Capital and long-term accounts receivable for such period (other than decreases relating to dispositions permitted pursuant to clause (k) of the definition of “Asset Sale”; and

(iv) an amount equal to the aggregate net non-cash loss on dispositions by Bidco and the Restricted Subsidiaries during such period (other than dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income, less:

 

  (b)

the sum, without duplication, of:

(i) an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (including any amounts included in Consolidated Net

 

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Income of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted under this Agreement to the extent such amounts are due but not received during such period) and cash charges included in clauses (1), (2), (8), (10), (11), (12), (16) and (17) of the definition of “Consolidated Net Income” (other than cash charges in respect of Transaction Costs paid on or about the Effective Date to the extent financed with the proceeds of Indebtedness incurred on the Effective Date or an equity investment on the Effective Date);

(ii) without duplication of amounts deducted pursuant to clause (xii) below in prior fiscal years, the amount of capital expenditures made in cash or accrued during such period, except to the extent that such capital expenditures were financed with the proceeds of long-term Indebtedness of Bidco or the Restricted Subsidiaries (other than the Revolving Loans);

(iii) the aggregate amount of all principal payments of Indebtedness (including (1) the principal component of payments in respect of Capitalized Leases and (2) the amount of any mandatory prepayment of Loans to the extent required due to a disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, but excluding all other prepayments of Term Loans and all prepayments of revolving loans and swingline loans (including Revolving Loans and Swingline Loans)) made during such period, other than (A) in respect of any revolving credit facility or swingline facility except to the extent there is an equivalent permanent reduction in commitments thereunder and (B) to the extent financed with the proceeds of other Indebtedness of Bidco or the Restricted Subsidiaries;

(iv) an amount equal to the aggregate net non-cash gain on dispositions by Bidco and the Restricted Subsidiaries during such period (other than dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income;

(v) increases in Consolidated Working Capital and long-term accounts receivable for such period;

(vi) cash payments by Bidco and the Restricted Subsidiaries during such period in respect of long-term liabilities of Bidco and the Restricted Subsidiaries other than Indebtedness;

(vii) without duplication of amounts deducted pursuant to clause (xii) below in prior fiscal years, the amount of Investments (other than Investments in Cash Equivalents) and acquisitions not prohibited by this Agreement, except to the extent that such Investments and acquisitions were financed with the proceeds of long-term Indebtedness of Bidco or the Restricted Subsidiaries (other than the Revolving Loans);

(viii) the amount of dividends and other Restricted Payments (including the amount of Tax Distributions made by Bidco to the extent not deducted in arriving at Consolidated Net Income) paid in cash during such period, except to the extent that such dividends and Restricted Payments were financed with the proceeds of long-term Indebtedness of Bidco or the Restricted Subsidiaries (other than the Revolving Loans);

 

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(ix) the aggregate amount of payments and expenditures actually made by Bidco and the Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such payments and expenditures are not expensed during such period;

(x) cash payments by Bidco and the Restricted Subsidiaries during such period in respect of non-cash charges included in the calculation of Consolidated Net Income in any prior period;

(xi) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Bidco and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness;

(xii) at the option of Bidco, and without duplication of amounts deducted in prior periods, (A) the aggregate consideration required to be paid in cash by Bidco or any of the Restricted Subsidiaries pursuant to binding contracts, commitments, letters of intent or purchase orders (the “Contract Consideration”), in each case, entered into prior to or during such period and (B) to the extent set forth in a certificate of a Financial Officer delivered to the Administrative Agent at or before the time the Compliance Certificate for such period is required to be delivered pursuant to Section 5.01(d), the aggregate amount of cash that is reasonably expected to be paid in respect of planned cash expenditures by Bidco or any of the Restricted Subsidiaries (the “Planned Expenditures”), in the case of each of clauses (A) and (B), relating to Permitted Acquisitions, other Investments (other than Investments in Cash Equivalents), capital expenditures (including Capitalized Software Expenditures or other purchases of Intellectual Property) or Restricted Payments to be consummated or made during a subsequent period; provided, that to the extent the aggregate amount of cash actually utilized to finance such Permitted Acquisitions, Investments, capital expenditures or Restricted Payments during such subsequent period (excluding any cash from the proceeds of long-term Indebtedness of Bidco or the Restricted Subsidiaries (other than the Revolving Loans)) is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period;

(xiii) the amount of cash payments made in such period to the extent they exceed the amount of rent payments deducted in determining Consolidated Net Income for such period; and

(xiv) the amount of taxes (including penalties and interest) paid in cash and/or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period.

Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time.

Excluded Affiliates” means (a) Affiliates of the Joint Lead Arrangers that are engaged as principals primarily in private equity, mezzanine financing or venture capital and (b) employees of the Joint Lead Arrangers engaged directly or indirectly in the sale of the Company as representatives of the Company (other than, in each case, such Persons engaged by Bidco or its Affiliates as part of the Transactions and such senior employees who are required, in accordance with industry regulations or such Joint Lead Arranger’s (or its Affiliate’s) internal policies and procedures, to act in a supervisory capacity and such Joint Lead Arranger’s internal legal, compliance, risk management, credit or investment committee members).

 

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Excluded Assets” means (a) in relation to a U.S. Loan Party, “Excluded Assets” as defined in the Collateral Agreement, (b) in relation to the relevant Loan Party, any other excluded assets defined or described in any other Security Documents, as reasonably agreed between the Administrative Agent and Bidco and (c) in relation to a Non-U.S. Loan Party, any assets of, held by or relating to, such Non-U.S. Loan Party, which, in each case, do not fall within the assets expressly contemplated under the definition of Overriding Principle (as defined in the Agreed Security Principles) or are otherwise excluded in accordance with the Agreed Security Principles. Notwithstanding anything to the contrary herein (but subject to the Agreed Security Principles in the case of any Non-U.S. Loan Party), the Collateral shall include all Satellite Collateral; provided that the Collateral shall not include (and Excluded Assets shall include) any Satellite Collateral to the extent granting a security therein is contractually or legally prohibited, prevented by public policy or national security concern or requires governmental (including regulatory) consent, approval, license or authorization from any Governmental Authority.

Excluded Contribution” means net cash proceeds, marketable securities or Qualified Proceeds received by Bidco from:

(1) contributions to its common equity capital, and

(2) the sale (other than to a Subsidiary of Bidco or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of Bidco) of Equity Interests (other than Disqualified Equity Interests and Designated Preferred Stock) of Bidco,

in each case designated as Excluded Contributions pursuant to an officer’s certificate executed by the principal financial officer of Bidco on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, which are excluded from the calculation set forth in clause (A) of Section 6.05(a) hereof.

Excluded Information” has the meaning assigned to such term in Section 2.10(a)(ii)(A).

Excluded Jurisdiction” means each of Bosnia, Brazil, China, Columbia, Ecuador, Egypt, India, Indonesia, Japan, Macedonia, Panama, Peru, Qatar, Romania, Russia, Serbia, Saudi Arabia, South Africa, the United Arab Emirates and Vietnam.

Excluded Subsidiary” means (i) with reference to any Domestic Subsidiary, (a) any Subsidiary that is a Non-Wholly Owned Subsidiary, including any joint ventures, (b) each Subsidiary listed on Schedule 1.01(b), (c) any Subsidiary for which the Guarantee of or the grant of Liens to secure the Secured Obligations (i) is prohibited by any applicable contractual obligation existing on the Effective Date or on the date any such Subsidiary is acquired or organized or ceases to be an Excluded Subsidiary pursuant to any other clause of this definition (as long as such prohibition was not entered into in contemplation of such transaction) or (ii) is prohibited by any Requirement of Law or requires governmental consent, approval, license or authorization (unless such consent, approval, license or authorization has been obtained), (d) any Immaterial Subsidiary, (e)(i) any direct or indirect Subsidiary that is (or that is a direct or indirect Subsidiary of) a CFC that is a Subsidiary of a Domestic Subsidiary, (ii) any Domestic Foreign Holdco and (iii) any Subsidiary whose provision of a Guarantee would result in a material adverse Tax consequence to Bidco or any Borrower (or, if applicable, the common parent of Bidco’s consolidated group for applicable income Tax purposes) and its Subsidiaries as reasonably determined by Bidco in consultation with the Administrative Agent, (f) each Unrestricted Subsidiary, (g) any Subsidiary that is (or, if it were a Loan Party, would be) an “investment company” under the Investment Company Act of 1940, as amended,

 

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(h) any not-for profit Subsidiaries, captive insurance companies, captive risk retention subsidiaries, special purpose securitization vehicle (including any Receivables Subsidiary) or other special purpose subsidiaries, or any broker dealer or trust companies, (i) [reserved], (j) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition (or other Investment not prohibited by this Agreement) that is financed with Indebtedness permitted under Section 6.01 hereof as assumed Indebtedness and any Restricted Subsidiary thereof that Guarantees such Indebtedness, in each case to the extent such Indebtedness prohibits such Restricted Subsidiary from becoming a Guarantor, (k) any Subsidiary whose capital requirements are subject to regulation by a Governmental Authority in respect of which the guaranteeing by such Subsidiary of the Loan Document Obligations would, as reasonably determined by Bidco, result in adverse regulatory consequences to such Subsidiary or impair the conduct of the business of such Subsidiary and any Subsidiary of such Subsidiary and (l) [reserved], (ii) with reference to any Foreign Subsidiary, any Foreign Subsidiary excluded pursuant to the Agreed Security Principles, and (iii) any other Subsidiary with respect to which, in the reasonable judgment of Bidco and the Administrative Agent, the cost, burden, difficulty or other consequences (including any adverse Tax consequences) of providing a Guarantee of the Secured Obligations shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom; provided that upon notice to the Administrative Agent, Bidco may at any time and in its sole discretion, deem that any Subsidiary shall not be an Excluded Subsidiary for purposes of this Agreement and the other Loan Documents.

Excluded Swap Obligation” means, with respect to any Guarantor at any time, any Secured Swap Obligation under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act, if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Secured Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act (determined after giving effect to any “Keepwell”, support or other agreement for the benefit of such Guarantor, at the time such guarantee or grant of a security interest becomes effective with respect to such related Secured Swap Obligation). If a Secured Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Secured Swap Obligation that is attributable to swaps that are or would be rendered illegal due to such guarantee or security interest.

Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed on (or measured by) such recipient’s net income (however denominated) and franchise Taxes imposed on it (in lieu of net income Taxes) by a jurisdiction (i) as a result of such recipient being organized or having its principal office or, in the case of any Lender, its applicable lending office in such jurisdiction, or (ii) as a result of any other present or former connection between such recipient and the jurisdiction imposing such Tax (other than a connection arising solely from such recipient having executed, delivered, become a party to, performed its obligations or received payments under, received or perfected a security interest under or enforced any Loan Documents or engaged in any other transaction pursuant to any Loan Document, or having sold or assigned an interest in any Loan Documents), (b) any branch profits tax imposed under Section 884(a) of the Code, or any similar Tax, imposed by any jurisdiction described in clause (a) above, (c) any Tax imposed pursuant to FATCA, (d) any withholding Tax that is attributable to a Lender’s failure to comply with Section 2.16(e) and (e) except in the case of an assignee pursuant to a request by Bidco under Section 2.18 hereto, any withholding Taxes that are imposed by a Borrower Tax Jurisdiction on amounts payable by that Borrower to a Lender or on amounts payable by a Guarantor to a Lender in respect of amounts payable to the Lender by that Borrower and which arise pursuant to any Requirement of Law in effect at the time such Lender becomes a party hereto (or designates a new lending office), except to the extent that

 

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such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding Tax under Section 2.16(a). For the purposes of clause (e) of this definition of Excluded Taxes, withholding tax imposed on amounts payable to or for the account of a Lender with respect to an interest in a Loan or Commitment as a result of, or in connection with, (i) any change that occurs pursuant to, or in connection with the adoption, ratification, approval or acceptance of, the MLI in or by any jurisdiction; or (ii) any change arising in consequence of, or in connection with, the United Kingdom ceasing to be a member state of the European Union, shall be considered in effect at the time the relevant Lender becomes a party to this Agreement.

Existing Letters of Creditshall meanmeans each of the letters of credit described on Schedule 1.01(c) hereto.

Existing Revolving Facility Agreement” means the $750,200,000 multicurrency revolving credit facility agreement originally dated June 30, 2011 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) between, amongst others, Inmarsat Investments Limited as company and National Westminster Bank Plc as agent and security agent.

Fair Market Value” or “fair market value” means, with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time taking into account the nature and characteristics of such asset, as reasonably determined by Bidco in good faith (which determination shall be conclusive).

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 thereto), any current or future United States Department of Treasury regulations thereunder or other official administrative interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code as of the date of this Agreement (or any amended or successor version described above) and any intergovernmental agreements implementing the foregoing.

Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of calculating such rate.

Fee Letter” means the(i) prior to the Amendment No. 4 Effective Date, the third amended and restated fee letter dated as of October 7, 2019, among, inter alios, the Finco Borrower, Barclays Bank PLC, Bank of America, N.A., BofA Securities, Inc. (f/k/a Merrill Lynch, Pierce, Fenner & Smith Incorporated), UBS AG, Stamford Branch, UBS Securities LLC, Banca IMI S.p.A., London Branch, BNP Paribas Fortis S.A./N.V., DNB (UK) Limited, HSBC Bank PLC, ING Bank N.V., MUFG Bank, Ltd., Natixis, New York Branch, National Westminster Bank plc, NatWest Markets plc, Sumitomo Mitsui Banking Corporation, The Bank of Nova Scotia, J.P. Morgan AG and Mizuho Bank, Ltd and (ii) on or after the Amendment No. 4 Effective Date, the agency fee letter dated as of March 28, 2024, among Bank of America, N.A., and the U.S. Borrower.

Financial Officer” means the chief financial officer, principal accounting officer, treasurer or corporate controller of Holdings, Bidco or a Restricted Subsidiary, as applicable.

 

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Financial Performance CovenantCovenants” means the covenantcovenants set forth in Section 6.07.

Financing Transactions” means (a) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to be a party, (b) the borrowing of Loans hereunder and the use of the proceeds thereof and (c) the issuance, amendment or extension of Letters of Credit hereunder and the use of proceeds thereof.

Finco Borrower” has the meaning assigned to such term in the preliminary statements hereto.

Fitch” means Fitch Ratings Inc. and any successor to its rating agency business.

Fixed Amounts” has the meaning assigned to such term in Section 1.07(b).

Fixed Charges” means, with respect to any Person for any period, the sum, without duplication, of:

(1) Consolidated Interest Expense of such Person for such period;

(2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any Restricted Subsidiary during such period; and

(3) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Equity Interests during such period.

Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to Adjusted LIBO Rate, Term SOFR, the EURIBOR Rate or Daily Simple RFR, as applicable.

Foreign Lender” means a Lender that is not a United States Person (as defined in Section 7701(a)(30) of the Code).

Foreign Prepayment Event” has the meaning assigned to such term in Section 2.10(g).

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

Form Intercreditor Agreements” means (a) an intercreditor agreement substantially in the form of the Pari Passu Intercreditor Agreement and/or (b) an intercreditor agreement substantially in the form of the Second Lien Intercreditor Agreement, as applicable.

Funded Debt” means all Indebtedness of Bidco and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.

 

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GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if Bidco notifies the Administrative Agent that Bidco requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies Bidco that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, (a) 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 FASB Accounting Standards Codification 825-Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards Codification), to value any Indebtedness of any subsidiary at “fair value,” as defined therein, (b) the amount of any Indebtedness under GAAP with respect to Capitalized Lease Obligations shall be determined providing that all obligations of any Person that are or would have been characterized as an operating lease as determined in accordance with GAAP as in effect prior to February 25, 2016 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease or Capitalized Lease Obligation) for purposes of this Agreement regardless of any change in GAAP following such date that would otherwise require such obligation to be recharacterized as a Capitalized Lease Obligation, to the extent that financial reporting shall not be affected hereby and (c) at Bidco’s sole election from time to time, any adverse impact directly or indirectly relating to or resulting from the implementation of FASB Accounting Standards Codification 606-Revenue From Contracts With Customers and any successor standard thereto (or any equivalent measure under IFRS) shall be disregarded with respect to all ratios, calculations and determinations based upon GAAP to be calculated or made, as the case may be, pursuant to this Agreement.

“General Debt Basket Reallocated Amount” means any amount that, at the option of Holdings, Bidco or a Borrower, has been reallocated from Section 6.01(b)(xi)(b)(x) to clause (I)(a)(ii) of the “Incremental Cap,” which shall be deemed to be a utilization of the basket set forth in Section 6.01(b)(xi)(b)(x).

Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and exemptions of, registrations and filings with, and reports to, Governmental Authorities.

Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether federal, state, provincial, territorial, local or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra national bodies such as the European Union or the European Central Bank).

Group” means Bidco and its Restricted Subsidiaries from time to time.

Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to

 

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enable the primary obligor to pay such Indebtedness or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Effective Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined in good faith by a Financial Officer. The term “Guarantee” as a verb has a corresponding meaning.

Guarantee Agreement” means the Guarantee Agreement among the Loan Parties and the Collateral Agent, substantially in the form of Exhibit B.

Guarantee Limitations” has the meaning specified in the Guarantee Agreement, as may be supplemented from time to time in accordance with the terms thereof.

Guarantor Coverage Material Subsidiary” means the Finco Borrower, (following the Acquisition) the Company and, at any time, each Non-U.S. Restricted Subsidiary that has earnings before interest, tax, depreciation and amortization (calculated (I) on an unconsolidated basis, (II) by excluding goodwill, intra-Group items and investments in Subsidiaries (in each case to the extent applicable) and (III) otherwise on the same basis as Consolidated EBITDA) representing 5% or more of Consolidated EBITDA of Bidco and its Restricted Subsidiaries, provided that:

(a) such calculation shall be determined by reference to the most recent Compliance Certificate required to be delivered by Bidco in respect of the latest financial statements delivered under Section 5.01(a) to the Administrative Agent;

(b) any entity having negative earnings before interest, tax, depreciation and amortization shall be deemed to have zero earnings before interest, tax, depreciation and amortization; and

(c) each Restricted Subsidiary that is incorporated in an Excluded Jurisdiction and/or is otherwise not required to (or is unable to) become a Guarantor in accordance with the Agreed Security Principles will not be considered a Guarantor Coverage Material Subsidiary.

Guarantor Coverage Test” means confirmation that the aggregate (without double counting) earnings before interest, tax, depreciation and amortization (calculated on the same basis as Consolidated EBITDA but taking each entity on an unconsolidated basis and excluding goodwill, all intra Group items and investments in Subsidiaries of any member of the Group) (“EBITDA”) of Bidco and its Restricted Subsidiaries that are Guarantors equals or exceeds 80.0% of Consolidated EBITDA of Bidco and its Restricted Subsidiaries; provided that, for the purposes of calculating the Guarantor Coverage Test only:

(a) to the extent any Guarantor generates negative EBITDA, such Guarantor shall be deemed to have zero EBITDA, for the purpose of calculating the numerator of the Guarantor Coverage Test; and

(b) unless otherwise elected by Bidco, to the extent that any member of the Group (i) is not a Guarantor and (ii) is incorporated in an Excluded Jurisdiction and/or is otherwise not required to (or is unable to) become a Guarantor in accordance with the Agreed Security Principles, then such member of the Group shall be deemed to have zero (0) EBITDA, for the purpose of calculating the denominator of the Guarantor Coverage Test.

 

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Guarantors” means Holdings, Bidco, any Intermediate Parent and the Subsidiary Loan Parties.

Hazardous Materials” means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum by-products or distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, or infectious or medical wastes, in each case in any form regulated pursuant to any Environmental Law.

Hedging Obligations” means, with respect to any Person, the obligations of such Person under any Swap Agreement.

Holdings” means (a) prior to any IPO, Initial Holdings and (b) upon and after an IPO, (i) if the IPO Entity is Initial Holdings or any Person of which Initial Holdings is a Subsidiary, Initial Holdings or (ii) if the IPO Entity is an Intermediate Parent, the IPO Entity.

“ICE LIBOR” has the meaning assigned to such term in the definition of “Alternate Base Rate.”

Identified Participating Lenders” has the meaning assigned to such term in Section 2.10(a)(ii)(C)(3).

Identified Qualifying Lenders” has the meaning specified in Section 2.10(a)(ii)(D)(3).

IFRS” means the International Financial Reporting Standards of the International Accounting Standards Board as adopted in the European Union; provided, however, that if Bidco notifies the Administrative Agent that Bidco requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Effective Date in IFRS or in the application thereof on the operation of such provision (or if the Administrative Agent notifies Bidco that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in IFRS or in the application thereof, then such provision shall be interpreted on the basis of IFRS as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, (a) the amount of any Indebtedness under IFRS with respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capitalized Lease Obligations and (b) at any time after the Effective Date, Bidco may elect, upon notice to the Administrative Agent, to apply GAAP accounting principles in lieu of IFRS and, upon any such election, references herein to IFRS shall thereafter be construed to mean GAAP (except as otherwise provided herein), including as to the ability of Bidco or the Required Lenders to make an election pursuant to clause (a) above; provided that (x) any election made pursuant to this clause (b), once made, shall be irrevocable, (y) any calculation or determination in this Agreement that requires the application of IFRS for periods that include fiscal quarters ended prior to Bidco’s election to apply GAAP shall remain as previously calculated or determined in accordance with IFRS and (z) Bidco may only make an election pursuant to this clause (b) if it also elects to report any subsequent financial reports required to be made by Bidco, including pursuant to Section 5.01(a) and (b), in GAAP, and (c) at Bidco’s sole election from time to time, any adverse impact directly or indirectly relating to or resulting from the implementation of IFRS 15 and any successor standard thereto (or any equivalent measure under GAAP) shall be disregarded with respect to all ratios, calculations and determinations based upon IFRS to be calculated or made, as the case may be, pursuant to this Agreement.

 

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Immaterial Subsidiary” means any Restricted Subsidiary other than a Material Subsidiary.

Immediate Family Members” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.

Impacted Loans” has the meaning assigned to such term in Section 2.13(a)(ii).

Increased Amount” shall have the meaning assigned to such term in Section 6.02(c).

Incremental Cap” means, as of any date of determination, the sum of:

(I) (a) $750,000,000 plus (ii) any General Debt Basket Reallocated Amount500,000,000; plus

(b) the aggregate principal amount of all voluntary prepayments of Loans, Incremental Equivalent Debt and/or any other Indebtedness secured by the Collateral on a pari passu basis with, or senior to, the Secured Obligations (including purchases of the Loans, Incremental Equivalent Debt and/or any other Indebtedness secured by the Collateral on a pari passu basis with, or senior to, the Secured Obligations by Bidco and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed to be the actual face amount the resulting reduction in Indebtedness of such Loans, Incremental Equivalent Debt and/or any other Indebtedness secured by the Collateral on a pari passu basis with, or senior to, the Secured Obligations and the amount paid in cash in respect of any reduction in the outstanding amount of any loan resulting from the application of any “yank-a-bank” provisions) (and in the case of any revolving loans, a corresponding commitment reduction) (other than, in each case, prepayments, repurchases and commitment reductions with the proceeds of (x) Refinancing Indebtedness, (y) Indebtedness the proceeds of which are used to refinance the Term Loans and Revolving Loans and (z) other long-term Indebtedness (other than Revolving Loans)); minus

(c) the aggregate principal amount of all Incremental Facilities and all Incremental Equivalent Debt outstanding at such time that was incurred in reliance on the foregoing clauses (a) and/or (b); plus

(II) (a) in the case of any Incremental Facilities or Incremental Equivalent Debt secured by the Collateral on a pari passu basis with the Secured Obligations, the maximum aggregate principal amount that can be incurred without causing the Senior Secured First Lien Net Leverage Ratio to exceed 5.103.75 to 1.00 for the most recently ended Test Period as of such date;

(b) in the case of any Incremental Facilities or Incremental Equivalent Debt secured by the Collateral on a junior basis with the Secured Obligations, the maximum aggregate principal amount that can be incurred without causing the Senior Secured Net Leverage Ratio to exceed 5.10 to 1.00 for the most recently ended Test Period as of such date; and

 

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(c) in the case of any Incremental Facilities or Incremental Equivalent Debt that is unsecured or is secured by assets that are not Collateral, the maximum aggregate principal amount that can be incurred without causing, at Bidco’s option, either:

(i) the Interest Coverage Ratio to be less than 2.00 to 1.00 for the most recently ended Test Period as of such date; or

(ii) the Total Net Leverage Ratio to exceed 5.10 to 1.00 for the most recently ended Test Period as of such date.

Any ratio calculated for purposes of determining the “Incremental Cap” shall be calculated on a Pro Forma Basis after giving effect to the incurrence of any Incremental Facility or Incremental Equivalent Debt and the use of proceeds thereof (assuming that the full amount of any Incremental Revolving Commitment Increase and Additional/Replacement Revolving Commitments being established at such time is fully drawn and deducting in calculating the numerator of any leverage ratio the cash proceeds thereof to the extent such proceeds are not promptly applied, but without giving effect to any simultaneous incurrence of any (i) Revolving Loans or (ii) Incremental Facility or Incremental Equivalent Debt made pursuant to clause (I) above) for the most recently ended Test Period as of such date and subject to Section 1.06 to the extent applicable. Indebtedness may be incurred under both clauses (I) and (II), and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under clause (II) above and then calculating the incurrence under clause (I) above (if any) (and vice versa) (and if both clauses (I) and (II) are available and Bidco does not make an election, Bidco will be deemed to have elected clause (II)); provided that any such Indebtedness originally incurred pursuant to clause (I) above shall cease to be deemed outstanding under clause (I) and shall instead be deemed to be outstanding pursuant to clause (II) above from and after the first date on which Bidco could have incurred the aggregate principal amount of such Indebtedness pursuant to clause (II) above.

Incremental Equivalent Debt” has the meaning assigned to such term in Section 6.01(b)(xxvi).

Incremental Facilities” has the meaning assigned to such term in Section 2.19(a).

Incremental Facility Amendment” has the meaning assigned to such term in Section 2.19(c).

Incremental Revolving Commitment Increase” has the meaning assigned to such term is Section 2.19(a).

Incremental Term Facility” has the meaning assigned to such term in Section 2.19(a).

Incremental Term Increase” has the meaning assigned to such term in Section 2.19(a).

Incremental Term Loan” means any Term Loan provided under any Incremental Facility.

Incurrence Based Amounts” has the meaning assigned to such term in Section 1.07(b).

Indebtedness” means, with respect to any Person, without duplication:

(1) any indebtedness (including principal and premium) of such Person, whether or not contingent:

 

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(a) in respect of borrowed money;

(b) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof);

(c) representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business and (ii) any earn-out obligations until, after 30 days of becoming due and payable, has not been paid and such obligation becomes a liability on the balance sheet of such Person in accordance with IFRS and any purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller; or

(d) representing any Hedging Obligations;

if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with IFRS;

(2) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (1) of a third Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business; provided that the amount of Indebtedness of any Person for purposes of this clause (2) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith; and

(3) to the extent not otherwise included, the obligations of the type referred to in clause (1) of a third Person secured by a Lien on any asset owned by such first Person, whether or not such Indebtedness is assumed by such first Person;

provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the ordinary course of business, (b) [reserved], (c) Indebtedness of any parent of Bidco appearing on the balance sheet of Bidco, or solely by reason of push down accounting under IFRS, (d) intercompany liabilities arising from their cash management, tax, and accounting operations, (e) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business, (f) obligations under any satellite manufacturing contract or Satellite Purchase Agreement (including any contingent in-orbit incentive payments or other contingent deferred payments earned by a manufacturer during the life of a Satellite under such satellite manufacturing contract or Satellite Purchase Agreement and including any Guarantee for any such indebtedness), (g) obligations under satellite capacity or bandwidth arrangements (whether or not classified and accounted for as a capitalized lease for financial reporting purposes in accordance with IFRS), (h) obligations to make progress or incentive payments (including any in-orbit incentive payments) or other deferred payments earned during the life of a Satellite under any satellite manufacturing contract or obligations under any contract of launch services with respect to a Satellite or (i) obligations to make payments to one or more insurers under any policies of insurance with respect to a Satellite, including payments in respect of premiums and any requirement to remit to such insurer(s) a portion of the future revenues generated by a Satellite with respect to which a claim has been paid for a loss under such insurance or other salvage rights of such insurer(s), in each case in accordance with the terms of the insurance policies relating thereto.

 

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Indemnified Taxes” means all Taxes, other than (i) Excluded Taxes, (ii) VAT (which, if applicable, shall be dealt with in accordance with Section 2.16), and (iii) Other Taxes.

Indemnitee” has the meaning assigned to such term in Section 9.03(b).

Information” has the meaning assigned to such term in Section 9.12(a).

Information Memorandum” means the Confidential Information Memorandum dated September 2019, relating to Bidco, the Borrowers and the Transactions.

Initial Guernsey Collateral Agreement” means:

(a) a first ranking security agreement from Initial Holdings in favor of the Collateral Agent over its Equity Interests in Bidco;

(b) a first ranking security agreement from the Finco Borrower in favor of the Collateral Agent over any structural intercompany receivables owed to it from Bidco;

(c) a first ranking security agreement from Bidco in favor of the Finco Borrower over its material operating bank accounts (without control over use) as security for Bidco’s obligations under any structural intercompany loans made to it by the Finco Borrower;

(d) a second ranking security agreement from Bidco in favor of the Collateral Agent over its material operating bank accounts (without control over use); and

(e) a first ranking security agreement from the Finco Borrower in favor of the Collateral Agent over its rights in respect of the security referred to in paragraph (c) above.

Initial Holdings” has the meaning given to such term in the preliminary statements hereto.

Initial Luxembourg Collateral Agreement” means:

(a) a first ranking security agreement from Bidco in favor of the Collateral Agent over its Equity Interests in the Finco Borrower;

(b) a first ranking security agreement from the Finco Borrower in favor of the Collateral Agent in respect of material operating bank accounts (without control over use); and

(c) a first ranking security agreement from the Finco Borrower in favor of the Collateral Agent over any structural intercompany receivables owed to it from Bidco.

Initial Term Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make an Initial Term Loan hereunder, expressed as an amount representing the maximum principal amount of the Initial Term Loan to be made by such Lender hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to an Assignment and Assumption. The amount of each Lender’s Initial Term Commitment as of the Effective Date is set forth on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Initial Term Commitment. As of the Effective Date, the total Initial Term Commitment is $1,750,000,000.

 

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Initial Term Commitment Expiration Date” means the earlier to occur of (x) the last day of the Certain Funds Period and (y) the date on which the Initial Term Commitments are reduced to zero.

Initial Term Loans” means the Loans made pursuant to Section 2.01(a). On the Amendment No. 1 Effective Date, the Initial Term Loans were repaid in full with the proceeds of the Amendment No. 1 Refinancing Term Loans. For the avoidance of doubt, neither the Amendment No. 1 Refinancing Terms Loans nor the Amendment No. 4 Term Loans shall not constitute Initial Term Loans.

Intellectual Property” has the meaning assigned to such term in the Collateral Agreement.

Intellectual Property Security Agreements” means, collectively, the Trademark Security Agreement, the Patent Security Agreement and the Copyright Security Agreement, in each case which has the meaning assigned to such term in the Collateral Agreement.

Interest Coverage Ratio” means, as of any date of determination, the ratio, on a Pro Forma Basis, of (a) Consolidated EBITDA for the most recently ended Test Period as of such date to (b) Consolidated Cash Interest Expense for the most recently ended Test Period as of such date.

Interest Election Request” means a request by any Borrower to convert or continue a Revolving Borrowing or Term Borrowing in accordance with Section 2.06.

Interest Payment Date” means (a) with respect to any ABR Loan (including a Swingline Loan) and any RFR Loan, the last Business Day of each March, June, September and December and (b) with respect to any Eurodollar Loan, Term Benchmark Loan or RFR Loan, the last Business Day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing, Term Benchmark Borrowing or RFR Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

Interest Period” means, with respect to any Eurodollar Borrowing, Term Benchmark Borrowing or RFR Borrowing, the period commencing on the date such Borrowing is disbursed or converted to or continued as a Eurodollar Borrowing, Term Benchmark Borrowing or an RFR Borrowing and ending on the date that is one, two (if available in the applicable currency), three or six (if available in the applicable currency) months thereafter as selected by any Borrower in its Borrowing Request (or, if consented to by each Lender participating therein, twelve months or such shorter period as such Borrower may elect); provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the immediately preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month at the end of such Interest Period, (c) no Interest Period shall extend beyond (i) in the case of Amendment No. 1 Refinancing Term Loans or Amendment No. 4 Term Loans, the Term Maturity Date, with respect thereto and (ii) in the case of Revolving Loans, the Revolving Maturity Date and (iii) in the case of Eurodollar Loans denominated in U.S. Dollars, the Amendment No. 3 Transition Date and (d) to the extent a Borrower has elected to make a EurodollarTerm Benchmark Borrowing on the Amendment No. 4 Effective Date, the Interest Period may, at the election of such Borrower and with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed), have a different duration (it being understood that any such Interest Period will be calculated based on the next longest Interest Period referred to above) such that the Interest Period will end on January 31April 30, 20202024. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

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Interim Facilities Agreement” means the interim facilities agreement originally dated 24 March 2019, as amended and restated on 13 April 2019, between, among others, Bidco as Obligors’ Agent (as defined therein) and Barclays Bank PLC as Interim Facility Agent (as defined therein).

Intermediate Parent” means any Wholly Owned Subsidiary of Holdings that is organized under the laws of (i) Luxembourg, (ii) Guernsey or (iii) England and Wales, in each case and of which Bidco is a subsidiary.

Interpolated Rate” means, in relation to the “LIBO Rate” for any Loan, the rate which results from interpolating on a linear basis between: (i) the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service) for the longest period (for which that rate is available) which is less than the Interest Period and (ii) the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service) for the shortest period (for which that rate is available) which exceeds the Interest Period, each as of approximately 11:00 A.M., London, England time, two Business Days prior to the commencement of such Interest Period.

Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, credit card and debit card receivables, trade credit, advances to customers and distributors, commission, travel and similar advances to employees, directors, officers, managers, distributors and consultants in each case made in the ordinary course of business and excluding, in the case of Bidco and its Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by IFRS to be classified on the balance sheet (excluding the footnotes) of Bidco in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property; provided that endorsements of negotiable instruments and documents in the ordinary course of business will not be deemed to be an Investment.

For purposes of the definition of “Unrestricted Subsidiary” and Section 6.05 hereof:

(1) “Investments” shall include the portion (proportionate to Bidco’s direct or indirect equity interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of Bidco at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Bidco or the applicable Restricted Subsidiary shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:

(a) Bidco’s “Investment” in such Subsidiary at the time of such redesignation; less

(b) the portion (proportionate to Bidco’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and

 

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(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by a Responsible Officer of Bidco or any Borrower.

The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash or other property by Bidco or a Restricted Subsidiary in respect of such Investment.

Investment Grade Rating” means a rating equal to or higher than (x) Baa3 (or the equivalent) by Moody’s, (y) BBB- (or the equivalent) by S&P or (z) a rating of BBB- (or the equivalent) by Fitch, as applicable, or if such obligations are not then rated by Moody’s, S&P or Fitch, an equivalent rating by any other rating agency.

Investment Grade Securities” means:

(1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);

(2) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among Bidco and its Subsidiaries;

(3) investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and

(4) corresponding instruments in countries other than the United States of America customarily utilized for high quality investments.

“Investors” means Warburg Pincus LLC, Apax Partners LLP, Ontario Teachers’ Pension Plan Board, Canada Pension Plan Investment Board and their respective Affiliates and any funds, partnerships or other investment vehicles managed or directly or indirectly controlled by them, but not including, however, any portfolio companies of the foregoing.

IPO” means the initial underwritten public offering (other than a public offering pursuant to a registration statement on Form S-8) of common Equity Interests of Initial Holdings, a parent entity of Initial Holdings or an Intermediate Parent. For the avoidance of doubt, an IPO shall not be deemed to have occurred hereunder on or after the consummation of the Viasat Acquisition due to Viasat being a public company.

IPO Entity” means, at any time upon and after an IPO, either Initial Holdings, a parent entity of Initial Holdings or an Intermediate Parent, as the case may be, the Equity Interests of which were issued or otherwise sold in a transaction described in the definition of “IPO”; provided that, immediately following the IPO, Bidco is a direct or indirect Wholly Owned Subsidiary of such IPO Entity and such IPO Entity owns, directly or through its subsidiaries, substantially all the businesses and assets owned or conducted, directly or indirectly, by Bidco immediately prior to the IPO.

ISP” means, with respect to any standby Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be reasonably acceptable to the applicable Issuing Bank and in effect at the time of issuance of such Letter of Credit).

 

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Issuing Bank” means (a) each of Bank of America, N.A., BarclaysGoldman Sachs Bank USA, ING Bank N.V., Citizens Bank, N.A., HSBC UK Bank PLC, JPMorgan Chase Bank, N.A., MUFG Bank, Ltd., UBS AG, Stamford Branch, BNP Paribas Fortis S.A./N.V., HSBC Bank PLC, ING Bank N.V., National Westminster Bank PLC, Sumitomo Mitsui Banking Corporation, Intesa Sanpaolo S.p.A., MUFG Bank, Ltd.,and Natixis, New York Branch, DNB (UK) Limited, The Bank of Nova Scotia, London Branch, J.P. Morgan AG and Mizuho Bank, Ltd. (provided that Barclays and UBS AG, Stamford Branch and Goldman Sachs Bank USA and their respective Affiliates shall each only be required to issue standby Letters of Credit) and (b) each Revolving Lender that shall have become an Issuing Bank hereunder as provided in Section 2.04(k) (other than any Person that shall have ceased to be an Issuing Bank as provided in Section 2.04(l)), each in its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates or branches of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate or such branch with respect to Letters of Credit issued by such Affiliate or such branch.

Joint Lead Arrangers” means (1) each of (i) prior to the Amendment No. 4 Effective Date, Barclays Bank PLC, BofA Securities, Inc. (f/k/a Merrill Lynch, Pierce, Fenner & Smith Incorporated) and UBS Securities LLC, each in their capacitycapacities as joint global coordinators and joint lead arrangers, and any permitted successors and assigns thereof, in their respective capacities as joint global coordinators and joint lead arrangers hereunder and (ii) Barclays Bank PLC, BofA Securities, Inc. (f/k/a Merrill Lynch, Pierce, Fenner & Smith Incorporated), UBS Securities LLC, BNP Paribas Fortis S.A./N.V., HSBC Bank PLC, ING Bank N.V., Natixis, New York Branch, NatWest Markets plc, Sumitomo Mitsui Banking Corporation, Banca IMI S.p.A., London Branch, MUFG Bank, Ltd., DNB (UK) Limited, The Bank of Nova Scotia, London Branch and Mizuho Bank, Ltd. each in their capacity as joint bookrunners, and any permitted successors and assigns thereof, in their respective capacities as joint bookrunners hereunder and, (2) each of (i) Barclays Bank PLC, BofA Securities, Inc. (f/k/a Merrill Lynch, Pierce, Fenner & Smith Incorporated) and UBS Securities LLC, each in their capacitycapacities as joint global coordinators and joint lead arrangers, and any permitted successors and assigns thereof, in their respective capacities as joint global coordinators and joint lead arrangers under the Amendment No. 1 and (ii) Barclays Bank PLC, BofA Securities, Inc. (f/k/a Merrill Lynch, Pierce, Fenner & Smith Incorporated), UBS Securities LLC, BNP Paribas Fortis S.A./N.V., HSBC Bank PLC, ING Bank N.V., Natixis, New York Branch, NatWest Markets plc, Sumitomo Mitsui Banking Corporation, Intesa Sanpaolo S.p.A., J.P. Morgan AG, MUFG Bank, Ltd., DNB (UK) Limited, The Bank of Nova Scotia, London Branch and Mizuho Bank, Ltd. each in their capacity as joint bookrunners, and any permitted successors and assigns thereof, in their respective capacities as joint bookrunners under the Amendment No. 1. and (3) from and after the Amendment No. 4 Effective Date, (i) in respect of the Revolving Facility, each of Bank of America, N.A., DNB (UK) Limited, Goldman Sachs Bank USA, ING Bank N.V., NatWest Markets plc, Citizens Bank, N.A., HSBC UK Bank PLC, Intesa Sanpaolo Bank Luxembourg S.A., JPMorgan Chase Bank, N.A., MUFG Bank, Ltd. and UBS Securities LLC, each in their capacities as joint lead arrangers and joint bookrunners, and any permitted successors and assigns thereof, in their respective capacities as joint lead arrangers and joint bookrunners hereunder and (ii) in respect of the Amendment No. 4 Term Loans, each of Bank of America, N.A., DNB (UK) Limited, Goldman Sachs Bank USA, ING Bank N.V., NatWest Markets plc, Citizens Bank, N.A., JPMorgan Chase Bank, N.A. and MUFG Bank, Ltd., each in their capacities as joint lead arrangers and joint bookrunners, and any permitted successors and assigns thereof, in their respective capacities as joint lead arrangers and joint bookrunners hereunder.

Judgment Currency” has the meaning specified in Section 9.22.

Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Other Term Loan, any Other Term Commitment, any Other Revolving Loan or any Other Revolving Commitment, in each case as extended in accordance with this Agreement from time to time.

 

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LC Commitmentshall meanmeans, in the case of each Issuing Bank, such amounts as set forth in Schedule 2.01 heretoI to Amendment No. 4; provided that upon the request of Bidco or any Borrower, any Issuing Bank may agree, in its sole discretion, to increase its LC Commitments under this definition, subject to the aggregate LC Commitments not exceeding the Letter of Credit Sublimit; provided that each Issuing Bank’s individual portion of the Letter of Credit Sublimit as set forth in this definition may be increased or decreased by Bidco or such Borrower subject only to the consent of such Issuing Bank.

LC Disbursement” means an honoring of a drawing by an Issuing Bank pursuant to a Letter of Credit.

LC Exposure” means, at any time, the sum of (a) the aggregate amount of all Letters of Credit that remains available for drawing at such time and (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the applicable Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.13 or 3.14 of the ISP or for any Letter of Credit issued with the exclusion of Article 36 of the UCP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided that with respect to any Letter of Credit that, by its terms or the terms of any document 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.

LC Reimbursement Date” has the meaning assigned to such term in Section 2.04(f).

LCT Election” has the meaning assigned to such term in Section 1.06.

LCT Test Date” has the meaning assigned to such term in Section 1.06.

Legal Reservations” means (a) the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court and principles of good faith and fair dealing, (b) applicable Debtor Relief Laws, (c) the existence of timing limitations with respect to the bringing of claims under applicable limitation laws and the defenses of acquiescence, set-off or counterclaim and the possibility that an undertaking to assume liability for, or to indemnify a Person against, non-payment of stamp duty may be void, (d) the principle that in certain jurisdictions and under certain circumstances a Lien granted by way of fixed charge may be re-characterized as a floating charge or that security purported to be constituted as an assignment may be re-characterized as a charge, (e) the principle that additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void, (f) the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant, (g) the principle that the creation or purported creation of collateral over any claim, other right, contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement (or contract or agreement relating to or governing the claim or other right) over which security has purportedly been created, (h) the principle that a court may not give effect to any parallel debt provisions, covenants to pay or other similar provisions, (i) the principle that certain remedies in relation to regulated entities may require further approval from government or regulatory bodies or pursuant to agreements with

 

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such bodies, (j) the principles of private and procedural laws which affect the enforcement of a foreign court judgment, (k) similar principles, rights and defenses under the laws of any relevant jurisdiction and (l) any other matters which are set out as qualifications or reservations (however described) in any legal opinion delivered pursuant to the Loan Documents.

Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, an Incremental Facility Amendment, a Loan Modification Agreement or a Refinancing Amendment, in each case, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.

Letter of Credit” means any letter of credit or bank guarantee by an Issuing Bank issued pursuant to this Agreement or deemed outstanding under this Agreement (other than any such letter of credit or bank guarantee that shall have ceased to be a “Letter of Credit” outstanding hereunder pursuant to Section 9.05).

Letter of Credit Request” has the meaning assigned to such term in Section 2.04(b).

Letter of Credit Sublimit” means an amount equal to $100,000,000. The Letter of Credit Sublimit is part of and not in addition to the aggregate Revolving Commitments.

LIBO Rate” means for any Interest Period, (a) with respect to any Eurodollar Borrowing in dollars, Swiss Francs, or Yen (as the case may be), the rate per annum equal to (i) the ICE Benchmark Administration LIBOR Rate or the successor thereto if the ICE Benchmark Administration is no longer making a LIBOR rate available, as published by Reuters (or such other commercially available source providing quotations of ICE LIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two (2) London Banking Days prior to the commencement of such Interest Period, for dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such published rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the Interpolated Rate, (b) with respect to any Eurodollar Borrowing in Canadian Dollars, the rate for Canadian Dollar denominated bankers’ acceptances on the Reuters Page CDOR (or on any successor or substitute page of such page or such other commercially available source providing quotations of CDOR as may be designated by the Administrative Agent from time to time) at approximately 10:00 a.m., Toronto time, two (2) Business Days prior to the commencement of such Interest Period, for Canadian Dollar denominated bankers’ acceptances (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, (c) with respect to any Eurodollar Borrowing in Euros, the euro interbank offered rate administered by the Banking Federation of the European Union or the successor thereto if the Banking Federation of the European Union is no longer making a EURIBOR rate available, as published by Reuters (or such other commercially available source providing quotations of EURIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., Brussels time, two (2) Business Days prior to the commencement of such Interest Period, for Euro deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period and (d) with respect to any Eurodollar Borrowing in an Alternative Currency other than Euros, Swiss Francs, Yen or Canadian Dollars, such reference rate for loans or deposits in such currency for such Interest Period as the Administrative Agent, Bidco and all Revolving Lenders shall agree.

Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, the term “LIBO Rate” may be amended to refer to (x) a comparable successor rate, with the consent of (i) only the Administrative Agent (but not, for the avoidance of doubt, any other Lender) (such consent not to be unreasonably withheld or delayed) and Bidco (such consent not to be unreasonably withheld or delayed) (provided that such amendment shall be effective only to the extent the Required

 

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Lenders do not object to such proposed amendment within five business days after the Administrative Agent has posted such amendment to all Lenders) or (ii) the Required Lenders and Bidco, or (y) to the extent the Administrative Agent determines in good faith that the consents referenced in the preceding clause (x)(i) are not attainable following commercially reasonable efforts to obtain such consents, a comparable successor rate that is the prevailing market standard for credit agreements of this type for the replacement of, or successors to, the eurodollar rate in the U.S. syndicated loan market as reasonably determined by the Administrative Agent (in consultation with Bidco), and the Administrative Agent shall promptly notify each Lender of such amendment; provided that such amendment shall be effective to the extent the Required Lenders do not object to such proposed amendment within five business days after the Administrative Agent has posted such amendment to all Lenders; provided further that any successor rate under clause (x) or (y) above shall not be less than (a) 1.00% per annum, with respect to any Amendment No. 1 Refinancing Term Loans and (b) 0.00% per annum, with respect to any Revolving Loans; provided further that, following the Amendment No. 3 Transition Date, Loans denominated in U.S. Dollars shall not be available for Eurodollar Borrowings.

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge or other security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any Capitalized Lease having substantially the same economic effect as any of the foregoing); provided that in no event shall an operating lease be deemed to constitute a Lien.

Limited Condition Transaction” means (a) any acquisition (including by way of merger), Investment, Asset Sale, Restricted Payment requiring declaration (as determined by Bidco) in advance thereof or other transaction by Bidco or one or more of the Restricted Subsidiaries permitted pursuant to this Agreement whose consummation is not conditioned upon the availability of, or on obtaining, third party financing (or, if such a condition does exist, Bidco or any Restricted Subsidiary, as applicable, would be required to pay any fee, liquidated damages or other amount or be subject to any indemnity, claim or other liability as a result of such third party financing not having been available or obtained) or (b) any prepayment, repurchase or redemption of Indebtedness requiring irrevocable notice in advance of such prepayment, repurchase or redemption.

Loan Document Obligations” means (a) the due and punctual payment by the Borrowers of (i) the principal of the Loans and LC Disbursements, and all accrued and unpaid interest thereon at the applicable rate or rates provided in this Agreement (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations of the Borrowers under or pursuant to this Agreement and each of the other Loan Documents, including obligations to pay fees, expenses, reimbursement obligations and indemnification obligations and obligations to provide cash collateral, whether primary, secondary, direct, contingent, fixed or otherwise (including interest and monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual payment and performance of all other obligations of the Borrowers under or pursuant to each of the Loan Documents and (c) the due and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan Documents (including interest and monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).

Loan Documents” means this Agreement, the Amendment No. 1, the Amendment No. 2, the Amendment No. 3, the Amendment No. 4, any Refinancing Amendment, any Loan Modification Agreement, any Incremental Facility Amendment, the Guarantee Agreement, the Collateral Agreement, the other Security Documents, any Customary Intercreditor Agreement, any Additional Borrower Agreement and, except for purposes of Section 9.02, the Fee Letter and any Note delivered pursuant to Section 2.08(e).

 

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Loan Modification Agreement” means a Loan Modification Agreement, in form reasonably satisfactory to the Administrative Agent, among the Borrowers, the Administrative Agent and one or more Accepting Lenders, effecting one or more Permitted Amendments and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.23.

Loan Modification Offer” has the meaning specified in Section 2.23(a).

Loan Parties” means Holdings, any Intermediate Parent, Bidco, the Borrowers and the Subsidiary Loan Parties.

Loans” means the loans made by the Lenders to the Borrowers pursuant to this Agreement.

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

Luxembourg” means the Grand Duchy of Luxembourg.

Luxembourg Companies Register” means the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg).

Luxembourg Loan Party” means any Loan Party having its registered office or central administration in Luxembourg, including as of the date of this Agreement, the Finco Borrower.

MLI” means the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting of November 24, 2016.

Major Events of Default” means those Events of Default set forth in Sections 7.01(a), 7.01(b) (in the case of Sections 7.01(a) and 7.01(b), with respect to the failure to pay any amount of principal, interest or fees (but not other amounts) (in each case other than where failure to pay is caused by administrative error or delay or technical error or delay in the transmission of funds or a market disruption event and payment is made within five Business Days after such administrative error, delay, technical error, delay in the transmission of funds or market disruption event is cured)), 7.01(c) (solely as it relates to any Major Representation), 7.01(d)(i) (solely as it relates to any Major Undertaking), 7.01(h), 7.01(i), 7.01(l), 7.01(m), 7.01(n) and 7.01(o), in each case solely to the extent that they relate to any Certain Funds Loan Party; provided, that for the avoidance of doubt, a Major Event of Default shall not apply in respect of or relate to the Company or any of its subsidiaries, or any of the assets of the Company or any of its subsidiaries, or a breach of a procuring obligation with respect to the Company or any of its subsidiaries.

Major Representations” means those representations and warranties set forth in Sections 3.01(a), 3.01(b), 3.02 and 3.03(b), in each case, solely to the extent that they relate to any Certain Funds Loan Party; provided, that, for the avoidance of doubt, a Major Event of Default as it relates to a Major Representation shall not apply in respect of or relate to the Company or any of the Company’s subsidiaries, or any of the assets of the Company or any of the Company’s subsidiaries, or a breach of a procuring obligation with respect to the Company or any of the Company’s subsidiaries.

 

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Major Undertakings” means those undertakings set forth in Sections 5.19, 6.01, 6.02, 6.03, 6.04 and 6.05, solely to the extent that they relate to any Certain Funds Loan Party; provided, that, for the avoidance of doubt, a Major Event of Default as it relates to a Major Undertaking shall not apply in respect of or relate to the Company or any of the Company’s subsidiaries, or any of the assets of the Company or any of the Company’s subsidiaries, or a breach of a procuring obligation with respect to the Company or any of the Company’s subsidiaries.

Majority in Interest”, when used in reference to Lenders of any Class, means, at any time, (a) in the case of the Revolving Lenders, Lenders having Revolving Exposures and unused Revolving Commitments representing more than 50% of the sum of the aggregate Revolving Exposures and the unused aggregate Revolving Commitments at such time and (b) in the case of the Term Lenders of any Class, Lenders holding outstanding Term Loans and unused Term Commitments of such Class representing more than 50% of all Term Loans and unused Term Commitments of such Class outstanding at such time; provided that whenever there are one or more Defaulting Lenders, the total outstanding Term Loans and Revolving Exposures of, and the unused Revolving Commitments and unused Term Commitments of, each Defaulting Lender shall be excluded for purposes of making a determination of the Majority in Interest.

Management Investors” means the members of the Board of Directors, officers and employees of Holdings, Bidco and/or its Subsidiaries who are (directly or indirectly through one or more investment vehicles) investors in Holdings (or any direct or indirect parent thereof).

Master Agreement” has the meaning assigned to such term in the definition of “Swap Agreement.”

Material Adverse Effect” means a circumstance or condition affecting the business, financial condition, or results of operations of Bidco and its Subsidiaries, taken as a whole, that would reasonably be expected to have a materially adverse effect on (a) the ability of Bidco and the other Loan Parties, taken as a whole, to perform their payment obligations under the Loan Documents or (b) the material rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders under the Loan Documents.

Material Indebtedness” means Indebtedness for borrowed money (other than the Loan Document Obligations), Capitalized Lease Obligations, unreimbursed obligations for letter of credit drawings and financial guarantees (other than ordinary course of business contingent reimbursement obligations) or obligations in respect of one or more Swap Agreements, of any one or more of Bidco and the Restricted Subsidiaries in an aggregate principal amount exceeding the greater of (x) $250,000,000 and (y) 33.33% of Consolidated EBITDA for the most recently ended Test Period as of such date, calculated on a Pro Forma Basis. For purposes of determining Material Indebtedness, the “principal amount” of the obligations in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Bidco or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

Material Non-Public Information” means (a) if Holdings is a public reporting company, material non-public information with respect to Holdings or its subsidiaries, or the respective securities of any of the foregoing for purposes of United States Federal and state securities laws, and (b) if Holdings is not a public reporting company, information that is (i) of the type that would be required to be made publicly available if Holdings or any of its subsidiaries were a public reporting company and (ii) material with respect to Holdings and its subsidiaries or any of their respective securities for purposes of United States Federal or state securities laws.

“Material Restricted Assets” means any assets (including any Satellite) that are material to the ordinary course operation of the business of Bidco and its Restricted Subsidiaries, taken as a whole.

 

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Material Subsidiary” means each Wholly Owned Restricted Subsidiary that, as of the last day of the fiscal quarter of Bidco most recently ended, had net revenues or total assets for such quarter in excess of 5.0% of the consolidated net revenues or total assets, as applicable, of Bidco and the Restricted Subsidiaries for such quarter; provided that in the event that the Immaterial Subsidiaries, taken together, had as of the last day of the fiscal quarter of Bidco most recently ended net revenues or total assets in excess of 10.0% of the consolidated revenues or total assets, as applicable, of Bidco and the Restricted Subsidiaries for such quarter, Bidco shall designate at its sole discretion one or more Immaterial Subsidiaries to be a Material Subsidiary as may be necessary such that the foregoing 10.0% limit shall not be exceeded, and any such Subsidiary shall thereafter be deemed to be an Material Subsidiary hereunder; provided further that Bidco may re-designate Material Subsidiaries as Immaterial Subsidiaries so long as Bidco is in compliance with the foregoing.

Maximum Rate” has the meaning assigned to such term in Section 9.16.

Minimum Equity Requirement” means, as at the relevant date of calculation, that the Equity Contributions are not less than 35% of the Capitalized Amount.

“MLI” means the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting of November 24, 2016.

Model” means that certain financial model delivered to the Joint Lead Arrangers on March 2, 2019 (together with any updates or modifications thereto reasonably agreed between Bidco and the Administrative Agent).

Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with IFRS and before any reduction in respect of Preferred Stock dividends.

Net Proceeds” means, with respect to any event, (a) the proceeds received in respect of such event in cash or Cash Equivalents, including (i) any cash or Cash Equivalents received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment or earn-out, but excluding any interest payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds that are actually received, and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments that are actually received, minus (b) without duplication the sum of (i) all fees and out-of-pocket expenses paid by Bidco and the Restricted Subsidiaries in connection with such event (including attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other customary expenses and brokerage, consultant, accountant and other customary fees), (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a Sale and Lease-Back Transaction or a casualty or a condemnation or similar proceeding), (x) the amount of all payments that are permitted hereunder and are made by Bidco and the Restricted Subsidiaries as a result of such event to repay Indebtedness (other than (1) the Loans or (2) if such asset constitutes Collateral, any Indebtedness secured by such asset with a Lien ranking pari passu with or junior to the Lien securing the Loan Document Obligations) secured by such asset or otherwise subject to mandatory prepayment as a result of such event, (y) the pro rata portion of net cash proceeds thereof (calculated without regard to this clause

 

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(y)) attributable to minority interests and not available for distribution to or for the account of Bidco or the Restricted Subsidiaries as a result thereof and (z) the amount of any liabilities directly associated with such asset and retained by Bidco or any Restricted Subsidiary and (iii) the amount of all taxes paid (or reasonably estimated to be payable), the amount of Tax Distributions, dividends and other Restricted Payments that Bidco and/or the Restricted Subsidiaries may make pursuant to Section 6.05(b)(xv)(B) as a result of such event, and the amount of any reserves established by Holdings, any Intermediate Parent, Bidco and the Restricted Subsidiaries to fund contingent liabilities reasonably estimated to be payable, that are directly attributable to such event, provided that any reduction at any time in the amount of any such reserves (other than as a result of payments made in respect thereof) shall be deemed to constitute the receipt by Bidco at such time of Net Proceeds in the amount of such reduction.

New Contracts” means executed agreements with new customers that have contracted with Bidco and its Subsidiaries, for which pricing, volumes and margins from the covered product categories are readily identified.

Non-Accepting Lender” has the meaning assigned to such term in Section 2.23(c).

Non-Cash Compensation Expense” means any non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive based compensation awards or arrangements.

Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(c).

Non-U.S. Loan Party” means any Loan Party organized in any jurisdiction other than the United States, any state thereof or the District of Columbia.

Non-U.S. Restricted Subsidiary” means any Subsidiary of Bidco organized in any jurisdiction other than the United States, any state thereof or the District of Columbia that is not an Unrestricted Subsidiary.

Non-U.S. Security Agreement” means (a) each security agreement executed by a Non-U.S. Restricted Subsidiary and listed on Schedule 1.01(d) and, (b) each other security agreement executed by a Non-U.S. Restricted Subsidiary in connection with Amendment No. 4 and (c) each other security agreement executed by the Non-U.S. Restricted Subsidiary pursuant to Section 5.12 in accordance with the Agreed Security Principles.

Non-Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person other than a Wholly Owned Subsidiary.

Note” means a promissory note of the Borrowers, in substantially the form of Exhibit R, payable to a Lender in a principal amount equal to the principal amount of the Revolving Commitment or Term Loans, as applicable, of such Lender.

NYFRB” means the Federal Reserve Bank of New York.

NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day; provided, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for the purposes of calculating such rate.

Offered Amount” has the meaning assigned to such term in Section 2.10(a)(ii)(D)(1).

 

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Offered Discount” has the meaning assigned to such term in Section 2.10(a)(ii)(D)(1).

Organizational Documents” means, with respect to any Person, the charter, articles or certificate of organization, constitution or incorporation and bylaws or other organizational or governing documents of such Person.

Other Connection Taxes” means, with respect to any Lender, Taxes that would otherwise be “Other Taxes and which are imposed as a result of a present or former connection between such Lender and the jurisdiction imposing such Tax (other than connections arising from such Lender 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 Revolving Commitments” means one or more Classes of Revolving Commitments hereunder or extended Revolving Commitments that result from a Refinancing Amendment or a Loan Modification Agreement.

Other Revolving Loans” means one or more classes or Revolving Loans made pursuant to any Other Revolving Commitment or a Loan Modification Agreement.

Other Taxes” means any and all present or future recording, stamp, documentary, excise, transfer, sales, property or similar Taxes, charges or levies arising from any payment made under any Loan Document or from the execution, delivery, performance, or enforcement of, or from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document excluding, in each case, any Other Connection Taxes or U.K. stamp duty or stamp duty reserve tax imposed as a result of a Lender’s Assignment and Assumption, grant of a participation, transfer or assignment to or designation of a new applicable Lending Office or other office for receiving payments under any Loan Document (other than where any of the foregoing results from a request by the Borrowers under Section 2.18 hereto), and VAT (which, if applicable, shall be dealt with in accordance with Section 2.16).

Other Term Commitments” means one or more Classes of term loan commitments that result from a Refinancing Amendment or a Loan Modification Agreement.

Other Term Loans” means one or more Classes of Term Loans hereunder that result from a Refinancing Amendment or a Loan Modification Agreement.

Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Term SOFR transactions denominated by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

Panel” means the Panel on Takeovers and Mergers.

Pari Passu Intercreditor Agreement” means the Pari Passu Intercreditor Agreement substantially in the form of Exhibit F among the Administrative Agent and one or more Senior Representatives for holders of Indebtedness permitted by this Agreement to be secured by the Collateral on a pari passu basis. On the Effective Date, the Administrative Agent entered into a Pari Passu Intercreditor Agreement with Wilmington Trust, National Association, as the Initial Additional Collateral Agent (as defined therein) and the Initial Additional Authorized Representative (as defined therein), and the other parties party thereto.

 

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Participant” has the meaning assigned to such term in Section 9.04(c)(i) .

Participant Register” has the meaning assigned to such term in Section 9.04(c)(ii).

Participating Lender” has the meaning assigned to such term in Section 2.10(a)(ii)(C)(2).

Participating Member State” means each state so described in any EMU Legislation.

PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

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

Periodic Term SOFR Determination Day” has the meaning assigned to such term in the definition of “Term SOFR”.

Permitted Acquisition” has the meaning assigned to such term in clause (3) of the definition of “Permitted Investment”.

Permitted Amendment” means an amendment to this Agreement and, if applicable the other Loan Documents, effected in connection with a Loan Modification Offer pursuant to Section 2.23, providing for an extension of a maturity date applicable to the Loans and/or Commitments of the Accepting Lenders and, in connection therewith, (a) a change in the Applicable Rate with respect to the Loans and/or Commitments of the Accepting Lenders and/or (b) a change in the fees payable to, or the inclusion of new fees to be payable to, the Accepting Lenders and/or (c) additional or modified covenants, events of default, guarantees or other provisions applicable only to periods after the Latest Maturity Date at the time of such Loan Modification Offer (it being understood that to the extent that any covenant, event of default, guarantee or other provision is added or modified for the benefit of any such Loans and/or Commitments, no consent shall be required by the Administrative Agent or any of the Lenders if such covenant, event of default, guarantee or other provision is either (i) also added or modified for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Loans and/or Commitments, (ii) with respect to any financial maintenance covenant or other covenant only applicable to, or for the benefit of, a revolving credit facility, also added for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder) or (iii) only applicable after the Latest Maturity Date at the time of such Loan Modification Offer); provided that, notwithstanding anything to the contrary, such Loans and/or Commitments, as applicable, shall not be subject to any “most favored nation” pricing adjustments set forth in this Agreement.

Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets used or useful in a Similar Business or a combination of such assets and cash or Cash Equivalents between Bidco or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received in excess of the value of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 6.04 hereof.

Permitted Holders” means (a) the Management Investors, (b) the Management Investors, (c) any Person who is acting solely as an underwriter in connection with a public or private offering of Equity Interests of any parent entity of Bidco or Bidco, acting in such capacity, (dc) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which

 

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any of the foregoing are members if a majority of the Equity Interests owned by the group is owned by Permitted Holders under clause (a) or (b) above, (ed) any Permitted Parent and (fe) if the Viasat Acquisition is consummated, Viasat and its Subsidiaries; provided that Viasat and its Subsidiaries shall cease to be Permitted Holders pursuant to this clause (fe) in the event that any Person or group (other than Permitted Holders described in clauses (a), (b) and (dc) of this definition) acquires beneficial ownership (as defined in the definition of “Change of Control”) of Equity Interests of Viasat representing at least the greater of (x) 40% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Viasat and (y) the percentage of the aggregate ordinary voting power represented by the Equity Interests in Viasat held by the Permitted Holders described in clauses (a), (b) and (dc) of this definition; provided, further, that, if the Purchase Agreement (as defined in the Viasat Filing) is terminated prior to the closing of the Viasat Acquisition, then this clause (f) shall cease to be operative.

Permitted Intercompany Activities” means any transactions (A) between or among Bidco and its Restricted Subsidiaries that are entered into in connection with the Transactions and/or in the ordinary course of business or consistent with past practice of Bidco and its Restricted Subsidiaries and, in the reasonable determination of Bidco are necessary or advisable in connection with the ownership or operation of the business of Bidco and its Restricted Subsidiaries, including (i) payroll, cash management, purchasing, insurance and hedging arrangements; (ii) management, technology and licensing arrangements; and (iii) customary loyalty and rewards programs; and (B) between or among Bidco and its Restricted Subsidiaries.

Permitted Investments” means:

(1) any Investment in Bidco or any of its Restricted Subsidiaries; provided that Investments by any Loan Party in any Restricted Subsidiary that is not a Loan Party made pursuant to this clause (1), taken together with all other Investments by any Loan Party in any Restricted Subsidiary that is not a Loan Party made pursuant to this clause (1) and clause (3) below, that are at that time outstanding, shall not exceed $300,000,000 (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

(2) any Investment in cash and Cash Equivalents or Investment Grade Securities;

(3) any Investment in a Person (including to the extent constituting an Investment, in assets of a Person that represent substantially all of its assets or a division, business unit or product line or line of business, including research and development and related assets in respect of any product); provided that as a result of such Investment (a “Permitted Acquisition”):

(a) such Person, upon the consummation of such purchase or acquisition, will be a Restricted Subsidiary (including as a result of a merger, amalgamation or consolidation between any Subsidiary and such Person); or

(b) such Person, in one transaction or a series of related transactions, is amalgamated, merged or consolidated with or into, or transfers or conveys substantially all of its assets (or a division, business unit or product line, including any research and development and related assets in respect of any product), or is liquidated into, Bidco or a Restricted Subsidiary,

 

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and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation or transfer; provided, further, that the actions set forth in the definition of the term “Collateral and Guarantee Requirement” to the extent applicable shall have been taken (or arrangements for the taking of such actions after the consummation of the Permitted Acquisition shall have been made that are reasonably satisfactory to the Administrative Agent) (unless such newly created or acquired Subsidiary is designated as an Unrestricted Subsidiary pursuant to Section 5.13 or is otherwise an Excluded Subsidiary); provided, further, that Investments by any Loan Party in any Restricted Subsidiary that is not a Loan Party made pursuant to this clause (3), taken together with all other Investments by any Loan Party in any Restricted Subsidiary that is not a Loan Party made pursuant to this clause (3) and clause (1) above, that are at that time outstanding, shall not exceed $300,000,000 (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

(4) any Investment in securities, promissory notes or other assets not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to the provisions of Section 6.04 hereof or any other disposition of assets not constituting an Asset Sale;

(5) (a) any Investment existing or made pursuant to binding commitments in effect on the Effective Date or an Investment consisting of any extension, modification or renewal of any such Investment and (b) any Investment existing on the Effective Date by any Borrower or any Restricted Subsidiary in any Borrower or any Restricted Subsidiary or an Investment consisting of any extension, modification or renewal of any such Investment; provided that the amount of any such Investment may be increased in such extension, modification or renewal only (i) as required by the terms of such Investment or binding commitment as in existence on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities and premium payable by the terms of such Investment thereon and fees and expenses associated therewith as of the Effective Date) or (ii) as otherwise permitted under this Agreement;

(6) any Investment (including debt obligations and Equity Interests) acquired by Bidco or any of its Restricted Subsidiaries:

(a) consisting of extensions of trade credit and accommodation guarantees in the ordinary course of business including extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit;

(b) in exchange for any other Investment or accounts receivable held by Bidco or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable (including any trade creditor or customer);

(c) in satisfaction of judgments against other Persons;

(d) as a result of a foreclosure by Bidco or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; or

(e) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;

 

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(7) Hedging Obligations incurred in the ordinary course of business and not for speculative purposes;

(8) any Investment in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (8) that are at that time outstanding, not to exceed the greater of $187,500,000100,000,000 and 2510% of Consolidated EBITDA for the most recently ended Test Period, calculated on a Pro Forma Basis, at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

(9) Investments and other acquisitions the payment for which consists of Equity Interests (other than Disqualified Equity Interests) of Bidco, any of its direct or indirect parent companies or the IPO Entity or any Unrestricted Subsidiary;

(10) (i) Indebtedness and guarantees of Indebtedness permitted under Section 6.01 hereof; the creation of Liens on the assets of Bidco or any Restricted Subsidiary in compliance with Section 6.02 and Restricted Payments permitted under Section 6.05 (other than by reference to this clause (10)) and (ii) performance guarantees and Contingent Obligations with respect to obligations that are not prohibited by the this Agreement;

(11) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 5.17 hereof (except transactions described in clause (xiv)(B) of Section 5.17 hereof) or Section 6.03;

(12) to the extent that they constitute Investments, purchases and acquisitions of inventory, supplies, materials or equipment or purchases, acquisitions, licenses or leases of other assets, intellectual property, receivables owing to Bidco or any Restricted Subsidiary or other rights, in each case in the ordinary course of business;

(13) (i) to the extent constituting Investments, any payments (including for capital expenditures) under any Satellite Purchase Agreement or any other contracts for the construction, procurement, launch, or insurance of any new Satellites and (ii) Investments in any Subsidiary or joint venture formed for the purpose of selling or leasing Satellite capacity to third-party customers in the ordinary course of business;

(14) additional Investments having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (14) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or have not been subsequently sold or transferred for cash or marketable securities), not to exceed the sum of (a) the greater of $450,000,000300,000,000 and 6030% of Consolidated EBITDA for the most recently ended Test Period, calculated on a Pro Forma Basis, at the time of such Investment, (b) the Available Restricted Payments Amount and (c) the Available Restricted Debt Payments Amount, plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without duplication for purposes of the covenant described in Section 6.05 of any amounts applied pursuant to clause (3) of the first paragraph of such covenant) (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

 

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(15) Investments relating to a Receivables Subsidiary that, in the good faith determination of Bidco are necessary or advisable to effect any Receivables Facility, distributions or payments of Receivables Fees or any repurchase obligation in connection therewith including, without limitation, Investments of funds held in accounts permitted or required by the arrangements governing such Receivables Facility or any related Indebtedness;

(16) advances to, or guarantees of Indebtedness of, employees not in excess of the greater of $75,000,000 and 10% of Consolidated EBITDA for the most recently ended Test Period, calculated on a Pro Forma Basis, outstanding at any one time, in the aggregate;

(17) (x) loans and advances to officers, members of the board of directors and employees of direct and indirect parent companies of Bidco, Bidco and its Restricted Subsidiaries (i) for business-related travel expenses, entertainment, moving expenses and other similar expenses, for ordinary business purposes, (ii) to fund such Person’s purchase of Equity Interests of Bidco or any direct or indirect parent company thereof and (iii) for payroll payments and (y) Investments in the form of Recruitment Notes and other recruiting costs to certain employees or financial advisors in the ordinary course of business;

(18) Investments in joint ventures and similar entities and Unrestricted Subsidiaries having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (18) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities, not to exceed the greater of $187,500,000100,000,000 and 2510% of Consolidated EBITDA for the most recently ended Test Period, calculated on a Pro Forma Basis, at the time of such Investment, plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without duplication for purposes of the covenant described in the Section 6.05 of any amounts applied pursuant to clause (3) of the first paragraph of such covenant) (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

(19) contributions to a “rabbi” trust for the benefit of employees, directors, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of Bidco;

(20) any other Investment (other than Investments in Unrestricted Subsidiaries); provided that (a) on a Pro Forma Basis after giving effect to such Investment the Senior Secured First Lien Net Leverage Ratio is equal to or less than 4.60 to 1.00 and (b) no Specified Event of Default shall have occurred and be continuing or would result therefrom;

(21) the Transactions;

(22) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers in the ordinary course of business;

(23) loans and advances to direct and indirect parent companies of Bidco (x) in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to such companies in accordance with Section 6.05(a) and (b) and (y) to the extent the proceeds thereof are contributed or loaned or advanced to another Restricted Subsidiary;

 

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(24) Investments (A) for utilities, security deposits, leases and similar prepaid expenses incurred in the ordinary course of business and (B) trade accounts created, or prepaid expenses accrued, in the ordinary course of business;

(25) non-cash Investments in connection with tax planning and reorganization activities, and Investments in connection with a Permitted Intercompany Activities and Permitted Tax Restructuring;

(26) any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;

(27) Investments by an Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”;

(28) Investments (including debt obligations and equity interests) (a) in connection with Settlements, (b) in exchange for any other Investment or accounts receivable, endorsements for collection or deposit held by Bidco or any Restricted Subsidiary, (c) as a result of foreclosure, perfection or enforcement of any Lien, (d) in satisfaction of judgments or (e) pursuant to any plan of reorganization or similar arrangement including upon the bankruptcy or insolvency of a debtor or litigation, arbitration or other disputes or otherwise with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

(29) Investments made from casualty insurance proceeds in connection with the replacement, substitution, restoration or repair of assets on account of a Casualty Event;

(30) Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client contacts and loans or advances made to distributors in the ordinary course of business; and

(31) Investments arising as a result of Sale and Lease-Back Transactions.

Permitted Liens” means, with respect to any Person:

(1) Liens incurred or pledges, deposits or security (a) in connection with workers’ or workmen’s compensation, unemployment insurance, employers’ health tax, social security, retirement and other similar legislation, or other insurance-related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) or (b) securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instrument for the benefit of) insurance carriers providing property, casualty or liability insurance to Bidco or any Restricted Subsidiary or otherwise supporting the payment of items set forth in the foregoing clause (a) or (b) good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;

 

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(2) Liens with respect to outstanding motor vehicle fines and Liens arising or imposed by law, such as landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or construction contractors’ Liens and other similar Liens, in each case (a) for sums not yet overdue for a period of more than 30 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with IFRS or (b) so long as such Liens do not individually or in the aggregate have a Material Adverse Effect;

(3) Liens for taxes, assessments or other governmental charges (a) that are not overdue for a period of more than 30 days, not yet payable or subject to penalties for nonpayment that are being contested in good faith by appropriate proceedings for which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with IFRS or (b) so long as such Liens do not individually or in the aggregate have a Material Adverse Effect;

(4) Liens incurred or deposits made to secure the performance of bids, trade contracts, governmental contracts and leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds, bankers acceptance facilities and other obligations of a like nature (including those to secure health, safety and environmental obligations) and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, in each case incurred in the ordinary course of business or consistent with past practices;

(5) (a) survey exceptions, encumbrances, easements, ground leases, covenants, conditions, rights-of-way, licenses, servitudes, restrictions, encroachments, protrusions, by-law, reservations of, or rights of others for sewers, electric lines, telegraph and telephone lines and other similar purposes, zoning or other restrictions (including defects and irregularities in title and similar encumbrances) and other similar encumbrances and title defects or irregularities affecting real property, that, in the aggregate, do not materially interfere with the ordinary conduct of the business of Bidco and its Restricted Subsidiaries, taken as a whole, (b) rights of recapture of unused real property in favor of the seller of property set forth in customary purchase agreements and related arrangements with any governmental authority, (c) Liens arising from the right of distress enjoyed by landlords or Liens otherwise granted to landlords, in either case, to secure the payment of arrears of rent in respect of leased properties, so long as such Liens are not exercised, (d) servicing agreements, development agreements, site plan agreements and other agreements with any governmental authority pertaining to the use or development of any of the assets of the Person, provided that the same are complied with in all material respects and do not materially reduce the value of the assets of the Person or materially interfere with the use of such assets in the operation of the business of such Person, (e) the reservations in any original grants from the crown of any land or interest therein and statutory exceptions to title and (f) other Liens on real property (including ground leases in respect of real property on which facilities owned or leased by Bidco or any of the Restricted Subsidiaries are located);

(6) Liens securing obligations relating to any Indebtedness permitted to be incurred pursuant to clause (i), (iii), (xi)(b), (xii), (xvi), (xix), (xxvi), (xxix), (xxx) or (xxxi) of Section 6.01(b) hereof or Section 6.01(a) hereof; provided that for purposes of this clause (6), any Lien securing obligations relating to any Indebtedness that is incurred under clause (xii) of Section 6.01(b) hereof shall be junior to the Liens on the Collateral securing the Secured Obligations to the extent that the Indebtedness that is being extended, replaced, refunded, refinanced, renewed or defeased is unsecured or subject to a Lien on the Collateral that is junior to the Liens securing the Secured Obligations; provided, further that (a) Liens securing Indebtedness permitted to be incurred pursuant to clause (xvi) are solely on acquired property or the assets of the acquired entity, as the case may be and (b) Liens on Collateral securing Indebtedness permitted to be incurred pursuant to Section 6.01(a) or (xxxi) of Section 6.01(b) shall be subject to a Customary Intercreditor Agreement, as applicable;

 

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(7) Liens existing on the Effective Date and, in each case, any modifications, replacements, renewals, refinancings, or extensions thereof;

(8) (a) Liens on property or shares of stock or other assets of a Person at the time such Person becomes a Subsidiary and (b) and Liens existing on property or other assets at the time of its acquisition; provided, however, that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, amalgamation, merger or consolidation; provided, further, however, that such Liens may not extend to any other property or other assets owned by Bidco or any of its Restricted Subsidiaries (other than any replacements of such property or assets and additions and accessions thereto, the proceeds or products thereof and other than after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted under this Agreement that require or include, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition);

(9) Liens (a) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted under this Agreement to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment or any Asset Sale permitted under this Agreement (including any letter of intent or purchase agreement with respect to such Investment or Asset Sale), (b) consisting of an agreement to dispose of any property in an Asset Sale permitted under this Agreement, in each case, solely to the extent such Investment or Asset Sale, as the case may be, would have been permitted on the date of the creation of such Lien and (c) solely on any cash earnest money deposits made by Bidco or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement;

(10) (a) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to Bidco or another Restricted Subsidiary permitted to be incurred in accordance with Section 6.01 hereof and (b) Liens on assets or property of a Restricted Subsidiary that is not a Guarantor securing Indebtedness and other obligations of any Restricted Subsidiary that is not a Guarantor;

(11) (a) Liens securing Hedging Obligations or on cash or Cash Equivalents securing Hedging Obligations; provided that, with respect to Hedging Obligations relating to Indebtedness, such Indebtedness is permitted under this Agreement, (b) Liens on cash and Cash Equivalents used to satisfy or discharge Indebtedness; provided such satisfaction or discharge is permitted under this Agreement and (c) Liens on cash and Cash Equivalents or other marketable securities securing letters of credit of any Borrower or any Guarantor (which Indebtedness represented by such letters of credit is permitted to be incurred under this Agreement) that are cash collateralized in an amount of cash, Cash Equivalents or other marketable securities with a Fair Market Value of up to 105% of the face amount of such letters of credit being secured;

(12) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s accounts payable or obligations in respect of bankers’ acceptances or trade letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

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(13) (a) leases, subleases, licenses or sublicenses granted to others in the ordinary course of business or consistent with past practice that do not materially interfere with the operation of the business of Bidco or any of its Restricted Subsidiaries, taken as a whole, (b) any interest or title of a lessor or licensee under any lease or license entered into by Bidco or any Restricted Subsidiary in the ordinary course of its business or consistent with past practice and (c) Liens arising from grants of non-exclusive licenses or sublicenses, or other similar grants of rights, of intellectual property;

(14) Liens arising from UCC (or equivalent statute) financing statement filings regarding operating leases or consignments entered into by Bidco and its Restricted Subsidiaries in the ordinary course of business and other Liens arising solely from precautionary UCC financing statements or similar filings;

(15) Liens in favor of any Borrower or any Guarantor (including, but not limited to, Liens on any assets of Bidco or any of its Restricted Subsidiaries);

(16) Liens on equipment or vehicles of Bidco or any of its Restricted Subsidiaries granted in the ordinary course of business or consistent with past practice;

(17) Liens on accounts receivable and related assets incurred in connection with a Receivables Facility;

(18) Liens to secure any modification, refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (6), (7), (8), and this clause (18); provided, however, that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property) and the proceeds and products thereof, (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6), (7) and (8) at the time the original Lien became a Permitted Lien under this Agreement, and (ii) an amount necessary to pay any fees and expenses, including premiums and accrued and unpaid interest, related to such modification, refinancing, refunding, extension, renewal or replacement and (c) any such new Lien shall be junior to the Liens on the Collateral securing the Secured Obligations to the extent that the Indebtedness that is being extended, replaced, refunded, refinanced, renewed or defeased is unsecured or subject to a Lien on the Collateral that is junior to the Liens securing the Secured Obligations;

(19) (a) deposits made or other security provided in the ordinary course of business to secure liability to insurance carriers and (b) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(20) other Liens securing obligations which do not exceed the greater of $450,000,000350,000,000 and 6035% of Consolidated EBITDA for the most recently ended Test Period, calculated on a Pro Forma Basis, at the time of the incurrence of such Lien;

(21) Liens securing, or otherwise arising from, judgments for the payment of money not constituting an Event of Default under clause (j) under Section 7.01 hereof;

(22) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

 

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(23) Liens (a) of a collection bank arising under applicable law, including Section 4-210 of the UCC, or any comparable or successor provision, on items in the course of collection; (b) attaching to pooling, commodity or securities trading accounts or other commodity or securities brokerage accounts incurred in the ordinary course of business; or (c) in favor of a banking or other financial institution or entity, or electronic payment service provider, arising as a matter of law or under customary terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of setoff) and which are within the general parameters customary in the banking or finance industry or arising pursuant to such banking or financial institution’s general terms and conditions (including Liens in favor of deposit banks or securities intermediaries securing customary fees, expenses or charges in connection with the establishment, operation or maintenance of deposit accounts or securities accounts);

(24) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 6.01 hereof, including Liens deemed to exist in connection with Investments in repurchase agreements under clause (12) of the definition of the term “Cash Equivalents”; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;

(25) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(26) Liens that are contractual rights of setoff, banker’s lien, netting agreements and other Liens (a) relating to deposit accounts, securities accounts, cash management arrangements or in connection with the issuance of Indebtedness, including letters of credit, bank guarantees or other similar instruments, (b) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Bidco and its Restricted Subsidiaries or (c) relating to purchase orders and other agreements entered into with customers of Bidco or any of its Restricted Subsidiaries in the ordinary course of business;

(27) Settlement Liens;

(28) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of Bidco or any of its Subsidiaries or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments; provided that such Lien secures only the obligations of Bidco or such Subsidiaries in respect of such letter of credit to the extent such obligations are permitted under Section 6.01;

(29) (a) Liens on Equity Interests of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary and (b) Liens then existing with respect to assets of an Unrestricted Subsidiary on the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described under the definition of “Unrestricted Subsidiaries”;

(30) Receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related inventory and proceeds thereof;

(31) Liens on Equity Interests of any joint venture (a) securing obligations of such joint venture or (b) pursuant to the relevant joint venture agreement or arrangement;

 

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(32) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into by Bidco or any Restricted Subsidiary in the ordinary course of business;

(33) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by Bidco or any Restricted Subsidiary thereof or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;

(34) additional Liens of Bidco or any of its Restricted Subsidiaries in an aggregate principal amount not to exceed the Available Amount that is not otherwise applied pursuant to Section 6.01(b)(xxiv) and Section 6.05(a)(A) as in effect immediately prior to the incurrence of such Liens (and after giving Pro Forma Effect thereto);[reserved];

(35) additional Liens of Bidco or any of its Restricted Subsidiaries in an aggregate principal amount that does not exceed the amount of Excluded Contributions made since the Effective Date that is not otherwise applied pursuant to Section 6.01(b)(xxv) and Section 6.05(b)(x) as in effect immediately prior to the incurrence of such Liens (and after giving Pro Forma Effect thereto);[reserved];

(36) Liens relating to escrow arrangements securing Indebtedness, including (i) Liens on escrowed proceeds from the issuance of Indebtedness for the benefit of the related holders of debt securities or other Indebtedness (or the underwriters, arrangers, trustee or collateral agent thereof) and (ii) Liens on cash or Cash Equivalents set aside at the time of the incurrence of any Indebtedness, in either case to the extent such cash or Cash Equivalents prefund the payment of interest or premium or discount on such Indebtedness (or any costs related to the issuance of such Indebtedness) and are held in an escrow account or similar arrangement to be applied for such purpose;

(37) [reserved];

(38) Liens arising in connection with any Permitted Intercompany Activities and Permitted Tax Restructuring; and

(39) Liens in connection with Sale and Lease-Back Transactions.

In the event that a Permitted Lien meets the criteria of more than one of the types of Permitted Liens (at the time of incurrence or at a later date), Bidco in its sole discretion may divide, classify or from time to time reclassify all or any portion of such Permitted Lien in any manner that complies with this Agreement and such Permitted Lien shall be treated as having been made pursuant only to the clause or clauses of the definition of “Permitted Lien” to which such Permitted Lien has been classified or reclassified.

Permitted Parent” means any direct or indirect parent entity of Bidco (other than a Person formed in connection with, or in contemplation of, a Change of Control transaction that results in a modification of the beneficial ownership of Bidco) that beneficially owns Equity Interests representing 100% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Bidco, provided that the ultimate beneficial ownership of Bidco has not been modified by the transaction by which such parent entity became the beneficial owner of Equity Interests representing 100% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Bidco.

 

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Permitted Tax Restructuring” means any reorganizations and other activities related to Tax planning and Tax reorganization entered into prior to, on or after the date hereof so long as such Permitted Tax Restructuring is not materially adverse to the Lenders (as determined by Bidco acting reasonably).

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

Planned Expenditures” has the meaning assigned to such term in the definition of “Excess Cash Flow”.

Platform” has the meaning assigned to such term in the last paragraph of Section 5.01.

Post-Transaction Period” means, with respect to any Specified Transaction, the period beginning on the date such Specified Transaction is consummated and ending on the last day of the eighthsixth full consecutive fiscal quarter immediately following the date on which such Specified Transaction is consummated.

Potential Rollover Instruments” means the Convertible Bonds.

Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.

Prepayment Event” means:

(a) (i) any non-ordinary course sale, transfer or other disposition of any Collateral permitted by Section 6.04(a) and clause (1) of the definition of Asset Sale or (ii) any Casualty Event, in each case, other than dispositions and/or Casualty Events resulting in aggregate Net Proceeds not exceeding (A) $150,000,000 in the case of any single transaction or Casualty Event or series of related transactions or Casualty Events and (B) $300,000,000 for all such transactions and Casualty Events during any fiscal year of Bidco; or

(b) the incurrence by Bidco or any of the Restricted Subsidiaries of any Indebtedness, other than Indebtedness permitted under Section 6.01 (other than Credit Agreement Refinancing Indebtedness, Other Term Loans, Other Revolving Loans and Other Revolving Commitments which shall constitute a Prepayment Event to the extent required by the definition of “Credit Agreement Refinancing Indebtedness”) or permitted by the Required Lenders pursuant to Section 9.02.

Prepayment Notice” means a notice of prepayment by Bidco or a Borrower in accordance with Section 2.10.

Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).

 

 

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Pro Forma Adjustment” means, for any relevant period that includes all or any part of a fiscal quarter included in any Post-Transaction Period with respect to the Acquired EBITDA of the applicable Pro Forma Entity or the Consolidated EBITDA of Bidco, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by Bidco in good faith as a result of (a) actions taken, prior to or during such Post-Transaction Period, for the purposes of realizing reasonably identifiable and quantifiable cost savings, or (b) any additional costs incurred prior to or during such Post-Transaction Period in connection with the combination of the operations of such Pro Forma Entity with the operations of Bidco and the Restricted Subsidiaries; provided that (A) so long as such actions are taken prior to or during such Post-Transaction Period or such costs are incurred prior to or during such Post-Transaction Period it may be assumed, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that such cost savings will be realizable during the entirety of such period, or such additional costs will be incurred during the entirety of such period, (B) any Pro Forma Adjustment to Consolidated EBITDA shall be certified by a Financial Officer, the chief executive officer or president of Bidco or a Borrower and (C) any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such period.

Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” mean, with respect to compliance with any test, financial ratio or covenant hereunder required by the terms of this Agreement to be made on a Pro Forma Basis or after giving Pro Forma Effect thereto, that (a) to the extent applicable, the Pro Forma Adjustment shall have been made and (b) all Specified Transactions and the following transactions in connection therewith that have been made during the applicable period of measurement or subsequent to such period and prior to or simultaneously with the event for which the calculation is made shall be deemed to have occurred as of the first day of the applicable period of measurement in such test, financial ratio or covenant: (i) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (A) in the case of a disposition of all or substantially all Equity Interests in any subsidiary of Bidco or any division, product line, or facility used for operations of Bidco or any of its Subsidiaries, shall be excluded and (B) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction,” shall be included, (ii) any retirement of Indebtedness, and (iii) any Indebtedness incurred or assumed by Bidco or any of its Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination and interest on any Indebtedness under a revolving credit facility computed on a Pro Forma Basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; provided that, without limiting the application of the Pro Forma Adjustment pursuant to clause (a) above, the foregoing Pro Forma Adjustments may be applied to any such test or covenant solely to the extent that such adjustments are consistent with the definition of “Consolidated EBITDA” and give effect to operating expense reductions that are (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on Bidco or any of its Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of “Pro Forma Adjustment”. References herein to Pro Forma Compliance or compliance on a Pro Forma Basis with the Financial Performance CovenantCovenants shall mean Pro Forma Compliance with the Financial Performance CovenantCovenants whether or not then in effect.

 

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Pro Forma Disposal Adjustment” means, for any relevant period that includes all or a portion of a fiscal quarter included in any Post-Transaction Period with respect to any Sold Entity or Business, the pro forma increase or decrease in Consolidated EBITDA projected by Bidco in good faith as a result of contractual arrangements between Bidco or any Restricted Subsidiary entered into with such Sold Entity or Business at the time of its disposal or within the Post-Transaction Period and which represents an increase or decrease in Consolidated EBITDA which is incremental to the Disposed EBITDA of such Sold Entity or Business for such period.

Pro Forma Entity” has the meaning given to such term in the definition of “Acquired EBITDA.”

Proposed Change” has the meaning assigned to such term in Section 9.02(c).

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.

Public Company Costs” means, as to Bidco or the IPO Entity, costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and costs relating to compliance with the provisions of the Securities Act of 1933 and the Exchange Act or any other comparable body of laws, rules or regulations, as companies with listed equity, directors’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees, in each case to the extent arising solely by virtue of the listing of such Person’s equity securities on a national securities exchange.

Public Lender” has the meaning assigned to such term in the last paragraph of Section 5.01.

QFC Credit Support” has the meaning assigned to such term in Section 9.20.

Qualified Equity Interests” means Equity Interests of Holdings or Bidco other than Disqualified Equity Interests.

Qualified Proceeds” means assets that are used or useful in, or Equity Interests of any Person engaged in, a Similar Business; provided that the fair market value of any such assets or Equity Interests shall be determined by a Responsible Officer of Bidco or a Borrower in good faith.

Qualifying Lender” has the meaning assigned to such term in Section 2.10(a)(ii)(D)(3).

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

Receivables Assets” means accounts receivable, royalty and other similar rights to payment and any other assets related thereto subject to a Receivables Facility that are customarily sold or pledged in connection with receivables transactions and the proceeds thereof.

 

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Receivables Facility” means any of one or more receivables securitization financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to Bidco or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which Bidco or any of its Restricted Subsidiaries sells or grants a security interest in its accounts receivable or assets related thereto that are customarily sold or pledged in connection with securitization transactions to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn sells its accounts receivable to a Person that is not a Restricted Subsidiary.

Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.

Receivables Subsidiary” means any Subsidiary formed for the purpose of, and that solely engages only in, one or more Receivables Facilities and other activities reasonably related or incidental thereto.

Recipient” has the meaning assigned to such term in Section 2.17(d).

Recruitment Notes” means forgivable promissory notes issued from time to time by a Restricted Subsidiary to certain employees or financial advisors in the ordinary course of business.

Reference Time” means, with respect to any setting of the then-current Benchmark means (1) if such Benchmark is Term SOFR, 5:00 p.m. (New York City time) on the day that is two Business Days preceding the date of such setting, (2) if such Benchmark is the Adjusted LIBOEURIBOR Rate in respect of Loans denominated in Euros, 11:00 a.m. (Brussels time) on the day that is two Business Days preceding the date of such setting, (3) if such Benchmark is the Adjusted LIBO Rate in respect of Loans denominated in Yen, 11:00 a.m. (Tokyo time) on the day that is two Business Days preceding the date of such setting; (4) if such Benchmark is the Adjusted LIBO Rate in respect of Loans denominated in Canadian Dollars, 11:00 a.m. (Toronto time) on the day that is two Business Days preceding the date of such setting, (5) if such Benchmark is SONIA, 11:00 a.m. (London time) on the day that is two Business Days preceding the date of such setting and (64) with respect to any other Benchmark, the time determined by the Administrative Agent in its reasonable discretion.

Refinanced Debt” has the meaning assigned to such term in the definition of “Credit Agreement Refinancing Indebtedness.”

Refinancing” means, collectively, (a) the refinancing of all Target Refinancing Indebtedness on or prior to the Target Debt Refinancing Outside Date and the termination of all commitments and Liens thereunder (or in the case of letters of credit, replaced, backstopped or incorporated or “grandfathered” into the Revolving Facility) and (b) to the extent that Bidco elects prior to the Target Debt Refinancing Outside Date that any portion of the Potential Rollover Instruments shall remain outstanding in accordance with the definition of “Target Debt Refinancing Indebtedness”, the reduction (without duplication) of Initial Term Commitments in an aggregate amount equal to the Rolled Over Amounts in accordance with Section 2.07(a).

Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and Bidco executed by each of (a) the Borrowers, Bidco and Holdings, (b) the Administrative Agent and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.20.

 

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Refinancing Indebtedness” has the meaning assigned to such term in Section 6.01(b)(xii).

Refunding Capital Stock” has the meaning assigned to such term in Section 6.05(b)(ii).

Register” has the meaning assigned to such term in Section 9.04(b)(iv).

Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same Guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.

Reinvestment Periodshall mean 450means 365 days following the date of receipt of Net Proceeds in respect of any Prepayment Event described in clause (a) of the definition thereof.

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

Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the Environment, including the environment within any building or any occupied structure, facility or fixture.

Relevant Governmental Bodyshall meanmeans (i) with respect to a Benchmark Replacement in respect of Loans denominated in U.S. Dollarsdollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto and, (iii) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto, (iv) with respect to a Benchmark Replacement in respect of Loans denominated in Swiss Francs, the Swiss National Bank, or a committee officially endorsed or convened by the Swiss National Bank or, in each case, any successor thereto and (v) with respect to a Benchmark Replacement in respect of Loans denominated in any other Agreed Currency, (a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.

Relevant Rate” means (i) with respect to any Term Benchmark Borrowing denominated in U.S. Dollarsdollars, Term SOFR, (ii) with respect to any SONIA RateTerm Benchmark Borrowing denominated in SterlingEuros, the SONIAEURIBOR Rate and (iii) with respect to any Eurodollar Borrowing in an Alternative Currency other than Sterling, such reference rate for loans or deposits in such currency for such Interest Period as the Administrative Agent and the Borrower shall agree in writing, as applicable.RFR Borrowing, Daily Simple RFR.

 

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Relevant Screen Rate” means (i) with respect to any Term Benchmark Borrowing denominated in U.S. Dollarsdollars, the Term SOFR Reference Rate or (ii) with respect to any Term Benchmark Borrowing denominated in Euros, the EURIBOR Rate.

Removal Effective Date” has the meaning assigned to such term in Section 8.06.

Repricing Transaction” means (a) the incurrence by any Borrower or any Guarantor of any Indebtedness in the form of term loans equal in right of payment to the Loan Document Obligations and secured by the Collateral on a pari passu basis with the Secured Obligations that are broadly syndicated to banks and other institutional investors (i) for the primary purpose (as reasonably determined by Bidco) of reducing the Effective Yield for the respective Type of such Indebtedness to less than the Effective Yield for the Amendment No. 1 Refinancing Term Loans or the Amendment No. 4 Term Loans, as applicable, of the respective equivalent Type, but excluding Indebtedness incurred in connection with (A) a Change of Control, (B) an IPO or (C) any material acquisition, merger or consolidation, material Investment, material Asset Sale or material Restricted Payment and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of Amendment No. 1 Refinancing Term Loans or the Amendment No. 4 Term Loans, as applicable, or (b) any amendment of this Agreement for the primary purpose of reducing the Effective Yield for the Amendment No. 1 Refinancing Term Loans or the Amendment No. 4 Term Loans (e.g., by way of amendment, waiver or otherwise), as applicable, except for a reduction in connection with (A) a Change of Control, (B) an IPO or (C) any material acquisition, merger or consolidation, material Investment, material Asset Sale or material Restricted Payment. Any determination by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive and binding on all Lenders holding the Term Loans.

Required Additional Debt Terms” means with respect to any Indebtedness, (a) such Indebtedness (other than any Designated Earlier Maturing Debt) does not mature earlier than the Term Maturity Date with respect to the Amendment No. 4 Term Loans (except in the case of customary bridge loans which subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent refinancing that does not mature earlier than the Term Maturity Date with respect to the Amendment No. 4 Term Loans), (b) such Indebtedness (other than any Designated Earlier Maturing Debt) does not have a shorter Weighted Average Life to Maturity than the remaining Amendment No. 1 Refinancing4 Term Loans (except in the case of customary bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent refinancing Indebtedness which does not have a shorter Weighted Average Life to Maturity than such remaining Amendment No. 1 Refinancing4 Term Loans), (c) such Indebtedness (other than any Designated Alternative Security Debt) is not guaranteed by any entity that is not a Loan Party, (d) if secured, such Indebtedness (other than any Designated Alternative Security Debt) (i) is not secured by any assets other than Collateral and (ii) is subject to a Customary Intercreditor Agreement(s) and (e) the other terms and conditions of such Indebtedness shall be as agreed between the borrower of such Indebtedness and the parties providing any such Indebtedness.

Required Lenders” means, at any time, Lenders having Revolving Exposures, Term Loans and unused Commitments (other than Swingline Commitments) representing more than 50% of the aggregate Revolving Exposures, outstanding Term Loans and unused Commitments (other than Swingline Commitments) at such time; provided that to the extent set forth in Section 9.02 or Section 9.04 whenever there are one or more Defaulting Lenders, the total outstanding Term Loans and Revolving Exposures of, and the unused Commitments of, each Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

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Required Revolving Lenders” means, at any time, Revolving Lenders having Revolving Exposures and unused Revolving Commitments (exclusive of Swingline Commitments) representing more than 50% of the aggregate Revolving Exposures and unused Revolving Commitments (exclusive of Swingline Commitments) at such time; provided that to the extent set forth in Section 9.02 or Section 9.04 whenever there are one or more Defaulting Lenders, the total outstanding Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, shall be excluded for purposes of making a determination of Required Revolving Lenders.

Required Term Lenders” means, at any time, Term Lenders having Term Loans and unused Term Commitments representing more than 50% of the aggregate outstanding Term Loans and unused Term Commitments at such time; provided that to the extent set forth in Section 9.02 or Section 9.04 whenever there are one or more Defaulting Lenders, the total outstanding Term Loans of, and the unused Term Commitments of, each Defaulting Lender shall be excluded for purposes of making a determination of Required Term Lenders.

Requirements of Law” means, with respect to any Person, any statutes, laws, treaties, rules, regulations, orders, decrees, writs, injunctions or determinations of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Rescindable Amount” has the meaning assigned to such term in Section 2.17(d).

Reserved Indebtedness Amount” has the meaning assigned to such term in Section 6.01(c)(iii).

Resignation Effective Date” has the meaning assigned to such term in Section 8.06.

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

Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer, or other similar officer, manager or a member of the Board of Directors of a Loan Party and with respect to certain limited liability companies or partnerships that do not have officers, any manager, sole member, managing member or general partner thereof. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

Restricted Debt Payment” has the meaning assigned to such term in Section 6.05(a).

Restricted Investment” means an Investment other than a Permitted Investment.

Restricted Payment” has the meaning assigned to such term in Section 6.05(a).

Restricted Subsidiary” means any Subsidiary of Bidco that is a U.S. Restricted Subsidiary or a Non-U.S. Restricted Subsidiary.

Retained Declined Proceeds” has the meaning assigned to such term in Section 2.10(e).

 

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Revaluation Date” means (a) the date of delivery of each Borrowing Request for a Revolving Borrowing in an Alternative Currency, (b) the date of issuance (and extension or renewal, at the discretion of the Administrative Agent and/or any Issuing Bank) of any Letter of Credit denominated in an Alternative Currency, (c) the date of conversion or continuation of any Revolving Borrowing denominated in an Alternative Currency or (d) such additional dates as the Administrative Agent may reasonably specify.

Revolving Availability Period” means the period from and including the Effective Date to but excluding the earlier of the Revolving Maturity Date and the date of termination of the Revolving Commitments.

Revolving Borrowers” has the meaning assigned to such term in the preliminary statements hereto.

Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption, (ii) a Refinancing Amendment, (iii) an Incremental Revolving Commitment Increase, (iv) a Loan Modification Agreement or (v) an Additional/Replacement Revolving Commitment. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption, Incremental Facility Amendment, Loan Modification Agreement or Refinancing Amendment pursuant to which such Lender shall have assumed its Revolving Commitment, as the case may be. TheAs of the Effective Date, the aggregate amount of the Lenders’ Revolving Commitments on the Effective Date iswas $700,000,000. As of the Amendment No. 4 Effective Date, (x) the Lenders’ Revolving Commitments in effect immediately prior to the effectiveness of Amendment No. 4 were terminated and (y) upon the effectiveness of Amendment No. 4, the initial amount of each Lender’s Revolving Commitment as of the Amendment No. 4 Effective Date was set forth on Schedule I to Amendment No. 4 and the aggregate amount of the Lenders’ Revolving Commitments was $550,000,000.

Revolving Exposure” means, with respect to any Revolving Lender at any time, the sum of the outstanding principal amount of such Revolving Lender’s Revolving Loans, its LC Exposure and its Swingline Exposure at such time.

Revolving Facility” means at any time, the aggregate amount of Revolving Commitments at such time.

Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.

Revolving Loan” means a Loan made pursuant to clause (b) of Section 2.01.

Revolving Maturity Datemeans (i) December  12March 28, 20242027 (or if such day is not a Business Day, the immediately preceding Business Day); provided that, (a) if more than $100,000,000 of the Senior Secured Notes are outstanding on the date that is 91 days prior to the maturity date of the Senior Secured Notes (and the Revolving Maturity Date does not then occur on an earlier date), then the Revolving Maturity Date shall occur on the date that is 91 days prior to the maturity date of the Senior Secured Notes and (b) if more than $100,000,000 of the Amendment No. 1 Refinancing Term Loans are outstanding on the date that is 91 days prior to the Term Maturity Date with respect to the Amendment No. 1 Refinancing Term Loans (and the Revolving Maturity

 

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Date does not then occur on an earlier date), then the Revolving Maturity Date shall occur on the date that is 91 days prior to the Term Maturity Date with respect to the Amendment No. 1 Refinancing Term Loans or (ii) with respect to any Revolving Lender that has extended its Revolving Commitment pursuant to a Permitted Amendment and with respect to any Issuing Bank that has consented to such extension, the extended maturity date set forth in any such Loan Modification Agreement.

RFR” shall mean SONIA.

RFR Business Day” shall mean any day except for (a) a Saturday, (b) a Sunday or (c) a day on which banks are closed for general business in London.

RFR Interest Day” shall have the meaning assigned to such term in the definition of “Daily Simple RFR”.

RFR Interest Payment” means, in respectfor any Obligations consisting of any interest period in relation to an RFR Loan, the aggregate amount of interest that is, or is scheduled to become, payable under any Loan Document., fees or other amounts denominated in (a) Sterling, SONIA, and (b) Swiss Francs, SARON.

RFR Loanshall meanmeans a Loan that bears interest at a rate based on Daily Simple RFR.

RFR Lookback Day” shall have the meaning assigned to such term in the definition of “Daily Simple RFR”.

Rolled Over Amounts” means, with respect to any portion of the Potential Rollover Instruments that Bidco elects prior to the Target Debt Refinancing Outside Date shall remain outstanding in accordance with the definition of “Target Refinancing Indebtedness”, the principal amount outstanding under such portion of the Potential Rollover Instruments.

Satellite” shall mean any satellite owned by, or leased to, Bidco or any other Loan Party and any satellite purchased by a Loan Party pursuant to the terms of a Satellite Purchase Agreement, whether such satellite is in the process of manufacture, has been delivered for launch or is in orbit (whether or not in operational service).

Satellite Collateral” means, collectively, (a) any Satellite owned by a Loan Party, (b) all material Intellectual Property necessary for the relevant Loan Party to own and operate any Satellite system, ground segment or transmission network related thereto and (c) any launch or in-orbit insurance proceeds related to the forgoing.

Satellite Manufacturer” shall mean, with respect to any Satellite, the prime contractor and manufacturer of such Satellite.

Satellite Purchase Agreement” shall mean, with respect to any Satellite, each agreement between the applicable Satellite Purchaser and the applicable Satellite Manufacturer relating to the manufacture, testing and delivery of such Satellite.

Satellite Purchaser” shall mean Bidco or any Loan Party that is a party to a Satellite Purchase Agreement or launch services agreement, as the case may be.

 

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S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor to its rating agency business.

Sale and Lease-Back Transaction” means any arrangement providing for the leasing by Bidco or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by Bidco or such Restricted Subsidiary to a third Person in contemplation of such leasing.

Sanctioned Country” means, at any time, a country, region or territory with which dealings are broadly restricted, prohibited, or made sanctionable under any Sanctions (as of the date of this Agreement, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria).

Sanctions” means economic or financial sanctions, trade embargos or similar restrictions administered or enforced by the United States Government (including without limitation, sanctions enforced by the United States Department of Treasury’s Office of Foreign Assets Control), the United Nations Security Council, the European Union, any European Union member state in which Holdings, Bidco, the Borrowers or a Restricted Subsidiary is organized, located or operates, or HerHis Majesty’s Treasury of the United Kingdom.

“SARON” means, with respect to any applicable determination date, the Swiss Average Rate Overnight published on the fifth Business Day preceding such date on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time); provided however that if such determination date is not a Business Day, SARON means such rate that applied on the first Business Day immediately prior thereto.

“Satellite” means any satellite owned by, or leased to, Bidco or any other Loan Party and any satellite purchased by a Loan Party pursuant to the terms of a Satellite Purchase Agreement, whether such satellite is in the process of manufacture, has been delivered for launch or is in orbit (whether or not in operational service).

“Satellite Collateral” means, collectively, (a) any Satellite owned by a Loan Party, (b) all material Intellectual Property necessary for the relevant Loan Party to own and operate any Satellite system, ground segment or transmission network related thereto and (c) any launch or in-orbit insurance proceeds related to the forgoing.

“Satellite Manufacturer” means, with respect to any Satellite, the prime contractor and manufacturer of such Satellite.

“Satellite Purchase Agreement” means, with respect to any Satellite, each agreement between the applicable Satellite Purchaser and the applicable Satellite Manufacturer relating to the manufacture, testing and delivery of such Satellite.

“Satellite Purchaser” means Bidco or any Loan Party that is a party to a Satellite Purchase Agreement or launch services agreement, as the case may be.

“Scheduled Unavailability Date” has the meaning specified in Section 2.13(k).

 

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Scheme” means the scheme of arrangement effected pursuant to Part 26 of the Companies Act 2006 proposed by the Company to its shareholders to implement the Acquisition and approved on May 10, 2019 by the requisite majority of the Company’s shareholders pursuant to which Bidco will, subject to the occurrence of the Scheme Effective Date, become the holder of the Target Shares that are the subject of that scheme of arrangement.

Scheme Circular” means the circular (including any supplemental circular) dispatched by the Company to shareholders of the Company setting out the resolutions and proposals for and the terms and conditions of the Scheme.

Scheme Documents” means each of (i) the Announcement, (ii) the Scheme Circular, and (iii) the Court Order.

Scheme Effective Date” means the date on which the Court Order sanctioning the Scheme is duly delivered on behalf of the Company to the Registrar of Companies in accordance with section 899 of the Companies Act 2006.

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

Second Commitment” has the meaning assigned to such term in Section 6.04(b)(ii).

Second Lien Intercreditor Agreement” means the Second Lien Intercreditor Agreement substantially in the form of Exhibit G among the Administrative Agent and one or more Senior Representatives for holders of Indebtedness permitted by this Agreement to be secured by the Collateral.

Secured Cash Management Obligations” means the due and punctual payment and performance of all obligations of Holdings, Bidco, any Borrower and the Restricted Subsidiaries in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing house transfers of funds provided to Bidco, any Borrower or any Subsidiary (whether absolute or contingent and howsoever and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor)) that are (a) owed to the Administrative Agent, a Joint Lead Arranger, a Lender or any of their respective Affiliates, (b) owed on the Effective Date to a Person that is a Lender or an Affiliate of a Lender as of the Effective Date, (c) owed to a Person that was an Agent, a Lender or an Affiliate of an Agent or Lender at the time such obligations are incurred or (d) owed to any other Person that is designated by Bidco or a Borrower by written notice to the Administrative Agent substantially in the form of Exhibit V or such other form reasonably acceptable to the Administrative Agent and Bidco or a Borrower.

Secured Indebtedness” means any Indebtedness of Bidco, any Borrower, any Guarantor or any of their Restricted Subsidiaries secured by a Lien other than Indebtedness with respect to Cash Management Obligations.

Secured Obligations” means (i) the Loan Document Obligations, (ii) the Secured Cash Management Obligations and (iii) the Secured Swap Obligations (excluding with respect to any Guarantor, Excluded Swap Obligations of such Guarantor).

Secured Parties” means (a) each Lender and Issuing Bank, (b) the Administrative Agent, (c) the Collateral Agent, (d) each holder of Secured Swap Obligations, (e) each holder of Secured Cash Management Obligations, (f) each Joint Lead Arranger, (g) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (h) the permitted successors and assigns of each of the foregoing.

 

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Secured Swap Obligations” means the due and punctual payment and performance of all obligations of Bidco, any Borrower and the Restricted Subsidiaries under each Swap Agreement that (a) is with a counterparty that is the Administrative Agent, a Joint Lead Arranger, a Lender or any of their respective Affiliates, (b) is in effect on the Effective Date with a counterparty that is a Lender, an Agent or an Affiliate of a Lender or an Agent as of the Effective Date, (c) is entered into after the Effective Date with any counterparty that is a Lender, an Agent or an Affiliate of a Lender or an Agent at the time such Swap Agreement is entered into or (d) is with any other Person that is designated by Bidco or a Borrower by written notice to the Administrative Agent substantially in the form of Exhibit W or such other form reasonably acceptable to the Administrative Agent and Bidco or a Borrower.

Security Documents” means, collectively, (a) the Collateral Agreement, (b) each Non-U.S. Security Agreement and (c) each other security agreement or pledge agreement executed and delivered pursuant to the Collateral and Guarantee Requirement, or Sections 5.11, 5.12 or 5.14 to secure any of the Secured Obligations.

Senior Representative” means, with respect to any series of Indebtedness permitted by this Agreement to be secured by the Collateral on a pari passu or junior basis with the Secured Obligations, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

Senior Secured First Lien Net Leverage Ratio” means, as of any date of determination, the ratio, on a Pro Forma Basis, of (a) the sum of (i) Consolidated Senior Secured First Lien Indebtedness as of such date and (ii) the Reserved Indebtedness Amount applicable at such time to the calculation of the Senior Secured First Lien Net Leverage Ratio with respect to commitments first obtained as of such date but not utilized as of such date (but only the extent such commitments are being obtained in reliance on a test based on such ratio) to (b) Consolidated EBITDA for the most recently ended Test Period as of such date; provided that prior to the expiration of the Certain Funds Period, any unused Initial Term Commitments (without duplication of any Indebtedness to be refinanced with the proceeds of such unused commitments) shall be included as Consolidated Senior Secured First Lien Indebtedness for purposes of this definition.

Senior Secured Net Leverage Ratio” means, as of any date of determination, the ratio, on a Pro Forma Basis, of (a) the sum of (i) Consolidated Senior Secured Indebtedness as of such date and (ii) the Reserved Indebtedness Amount applicable at such time to the calculation of the Senior Secured Net Leverage Ratio with respect to commitments first obtained as of such date but not utilized as of such date (but only the extent such commitments are being obtained in reliance on a test based on such ratio) to (b) Consolidated EBITDA for the most recently completed Test Period; provided that prior to the expiration of the Certain Funds Period, any unused Initial Term Commitments (without duplication of any Indebtedness to be refinanced with the proceeds of such unused commitments) shall be included as Consolidated Senior Secured Indebtedness for purposes of this definition.

Senior Secured Notes” means those 6.750% Senior Secured Notes due 2026 issued by the Finco Borrower and the U.S, Borrower in an aggregate amount of $2,075,000,000 issued on or prior to the Effective Date pursuant to the Senior Secured Notes Documents.

 

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Senior Secured Notes Documents” means the Senior Secured Notes Indenture and all supplemental indentures, other agreements, instruments and other documents (including collateral documents with respect thereto) pursuant to which the Senior Secured Notes have been issued.

Senior Secured Notes Indenture” means the Indenture, dated as of October 7, 2019, among the Finco Borrower and the U.S. Borrower, as issuers, the guarantors party thereto from time to time and Wilmington Trust, National Association, as trustee, governing the Senior Secured Notes, as the same may be amended, supplemented, waived or otherwise modified from time to time.

Settlement” means the transfer of cash or other property with respect to any credit or debit card charge, check or other instrument, electronic funds transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.

Settlement Asset” means any cash, receivable or other property, including a Settlement Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person.

Settlement Indebtedness” means any payment or reimbursement obligation in respect of a Settlement Payment.

Settlement Lien” means any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance of doubt, the grant of a Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).

Settlement Payment” means the transfer, or contractual undertaking (including by automated clearing house transaction) to effect a transfer, of cash or other property to effect a Settlement.

Settlement Receivable” means any general intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.

Similar Business” means (1) any business conducted or proposed to be conducted by Bidco or any of its Subsidiaries on the Effective Date or (2) any business or other activities that are reasonably similar, incidental, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses in which Bidco and any of its Subsidiaries were engaged on the Effective Date.

SOFR” means, with respect to any Business Day, a rate equal to the secured overnight financing rate for such Business Day published as administered by the SOFR Administrator.

SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).

“SOFR Scheduled Unavailability Date” has the meaning specified in Section 2.13(j).

Sold Entity or Business” has the meaning assigned to such term in the definition of the term “Consolidated EBITDA.”

 

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Solicited Discount Proration” has the meaning assigned to such term in Section 2.10(a)(ii)(D)(3).

Solicited Discounted Prepayment Amount” has the meaning assigned to such term in Section 2.10(a)(ii)(D)(1).

Solicited Discounted Prepayment Notice” means an irrevocable written notice of a Borrower Solicitation of Discounted Prepayment Offers made pursuant to Section 2.10(a)(ii)(D) substantially in the form of Exhibit N.

Solicited Discounted Prepayment Offer” means the irrevocable written offer by each Term Lender, substantially in the form of Exhibit O, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.

Solicited Discounted Prepayment Response Date” has the meaning assigned to such term in Section 2.10(a)(ii)(D)(1).

SONIA” means, with respect to any RFR Business Day, a rate per annum equal toapplicable determination date, the Sterling Overnight Index Average for such RFR Business Day published by the SONIA Administrator on the SONIA Administrator’s Website.Reference Rate published on the fifth Business Day preceding such date on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time); provided however that if such determination date is not a Business Day, SONIA means such rate that applied on the first Business Day immediately prior thereto.

SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).

SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.

Specified Asset Sale Proceeds” means the sum of the Net Proceeds received since the Effective Date by or on behalf of Bidco or any of the Restricted Subsidiaries in respect of any Prepayment Event described in clause (a) of the definition thereof that exceeds such amount required to be applied to prepay the Term Loans or be reinvested pursuant to Section 2.10(c).

Specified Discount” has the meaning assigned to such term in Section 2.10(a)(ii)(B)(1).

Specified Discount Prepayment Amount” has the meaning assigned to such term in Section 2.10(a)(ii)(B)(1).

Specified Discount Prepayment Notice” means an irrevocable written notice of the Borrower Representative of Specified Discount made pursuant to Section 2.10(a)(ii)(B) substantially in the form of Exhibit J.

Specified Discount Prepayment Response” means the irrevocable written response by each Term Lender, substantially in the form of Exhibit K, to a Specified Discount Prepayment Notice.

Specified Discount Prepayment Response Date” has the meaning assigned to such term in Section 2.10(a)(ii)(B)(1).

 

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Specified Discount Proration” has the meaning assigned to such term in Section 2.10(a)(ii)(B)(3).

Specified Event of Default” means an Event of Default under Section 7.01(a), (b), (h) or (i).

Specified Transaction” means, with respect to any period, any Investment, sale, transfer or other disposition of assets, incurrence or repayment of Indebtedness, Restricted Payment, subsidiary designation or other event that by the terms of the Loan Documents requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis or after giving Pro Forma Effect thereto.

Sponsor Management Agreement” means any management agreement between certain of the management companies associated with the Investors and Holdings, Bidco or its Restricted Subsidiaries.

Spot Rate” means, on any day, with respect to any Alternative Currency (for purposes of determining the Alternative Currency Equivalent thereof), the rate at which such currency may be exchanged into dollars or the applicable Alternative Currency, as the case may be, as set forth at approximately 11:00 a.m., New York City time, two (2) Business Days prior to such date on the applicable Bloomberg Key Cross Currency Rates Page. In the event that any such rate does not appear on any Bloomberg Key Cross Currency Rates Page, the Spot Rate shall be determined by reference to such other publicly available service for displaying exchange rates selected by the Administrative Agent for such purpose, or, at the discretion of the Administrative Agent, such Spot Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m., local time in such market, two (2) Business Days prior to such date for the purchase of dollars or the applicable Alternative Currency, as the case may be, for delivery two (2) Business Days later; provided that, if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any other reasonable method it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

Squeeze-Out” means an acquisition of the outstanding shares in the Company that Bidco has not acquired pursuant to the procedures contained in sections 979 to 982 of the Companies Act 2006.

Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset or similar percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by any Governmental Authority of the United States. Such reserve, liquid asset or similar percentages shall include those imposed pursuant to Regulation D of the Board of Governors. Eurodollar Loans shall be deemed to be subject to such reserve, liquid asset or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D of the Board of Governors or any other Requirements of Law. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

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

Subject Lien” has the meaning assigned to such term in Section 6.02(a).

Submitted Amount” has the meaning assigned to such term in Section 2.10(a)(ii)(C)(1).

 

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Submitted Discount” has the meaning assigned to such term in Section 2.10(a)(ii)(C)(1).

Subordinated Indebtedness” means, any Indebtedness (other than (x) any permitted intercompany Indebtedness owing to direct and indirect parent companies of Bidco, Bidco or any Restricted Subsidiary or (y) any Indebtedness in an aggregate principal amount not exceeding $250,000,000) of any Borrower or any other Guarantor which is by its terms subordinated in right of payment to the Loan Document Obligations.

Subordinated Shareholder Liabilities” means any loan or other indebtedness owed by Bidco or a Borrower to Holdings or any other (direct or indirect) shareholder of Bidco or a Borrower, provided that such loan or indebtedness is secured in favor of the Collateral Agent, does not require interest payments to be made in cash and is subordinated on terms satisfactory to the Administrative Agent.

subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with IFRS, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held (unless parent does not Control such entity), or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

Subsidiary” means any subsidiary of Bidco (unless otherwise specified).

Subsidiary Loan Party” means each Subsidiary of Bidco that is a party to the Guarantee Agreement.

Successor Entity” has the meaning assigned to such term in Section 6.03(a)(iv).

“Successor Rate” has the meaning specified in Section 2.13(k).

Supported QFC” has the meaning assigned to such term in Section 9.20.

Swap Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

Swiss Franc” means the lawful currency of Switzerland.

 

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Swingline Commitment” means the commitment of the Swingline Lender to make Swingline Loans up to an aggregate principal amount not to exceed $150,000,00075,000,000.

Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the aggregate Swingline Exposure at such time.

Swingline Lender” means (a) the Administrative Agent and (b) each Revolving Lender that shall have become a Swingline Lender hereunder as provided in Section 2.24(d) (other than any Person that shall have ceased to be a Swingline Lender as provided in Section 2.24(e)), each in its capacity as a lender of Swingline Loans hereunder.

Swingline Loan” means a Loan made pursuant to Section 2.24.

“Swiss Franc” means the lawful currency of Switzerland.

“T2” means the real time gross settlement system operated by the Eurosystem, or any successor system.

“TARGET Day” means any day on which T2 is open for the settlement of payments in Euro.

Target Debt Refinancing Outside Date” means the date falling sixty (60) days following the Effective Date.

Target Refinancing Indebtedness” means the indebtedness outstanding under each of (a) the Existing Revolving Facility Agreement, (b) the 2024 Notes, (c) the 2022 Notes, (d) 2011 Ex-Im Credit Agreement, (e) the 2014 Ex-Im Credit Agreement and (f) the Potential Rollover Instruments; provided that, to the extent that any portion of the Potential Rollover Instruments for which Bidco has made an offer has not been refinanced prior to the Target Debt Refinancing Outside Date, Bidco may elect, by notice to the Administrative Agent, prior to the Target Debt Refinancing Outside Date that such portion of the Potential Rollover Instruments shall remain outstanding, in which case such portion of the Potential Rollover Instruments shall not constitute Target Refinancing Indebtedness.

Target Shares” means 100% of the issued share capital in the Company.

Tax Confirmation” means a confirmation by a Lender that it is beneficially entitled to interest payable to that Lender in respect of a Loan Document and is either: (i) a company resident in the United Kingdom for United Kingdom tax purposes; (ii) a partnership each member of which is: (1) a company so resident in the United Kingdom; or (2) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the United Kingdom Corporation Tax Act 2009 (“CTA”)) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or (iii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

Tax Distributions” has the meaning assigned to such term in Section 6.05(b)(xv)(B).

Tax Group” has the meaning assigned to such term in Section 6.05(b)(xv)(B).

 

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Tax Structure Memorandum” means the tax structure memorandum prepared by PricewaterhouseCoopers LLP entitled “Project Triton - Structuring Strawman Paper” in connection with the Transactions.

Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to Term SOFR or the Adjusted LIBOEURIBOR Rate.

Term Borrowers” has the meaning assigned to such term in the preliminary statements hereto.

Term Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make a Term Loan hereunder, expressed as an amount representing the maximum principal amount of the Term Loan to be made by such Lender hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption, (ii) a Refinancing Amendment, (iii) an Incremental Facility Amendment in respect of any Term Loans or (iv) a Loan Modification Agreement. The amount of each Lender’s Term Commitment as of the Effective Date is set forth on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Term Commitment, Incremental Facility Amendment, Loan Modification Agreement or Refinancing Amendment, as the case may be. As of the Effective Date, the total Term Commitment with respect to the Initial Term Loans was $1,750,000,000. As of the Amendment No. 1 Effective Date, the total Term Commitment with respect to the Amendment No. 1 Refinancing Term Loans iswas $1,736,875,000. As of the Amendment No. 4 Effective Date, the total Term Commitment with respect to the Amendment No. 4 Term Loans was $633,994,802.66.

Term Lender” means a Lender with a Term Commitment or an outstanding Term Loan.

Term Loans” means Initial Term Loans, Other Term Loans (including the Amendment No. 1 Refinancing Term Loans and the Amendment No. 4 Term Loans) and Incremental Term Loans, as the context requires.

Term Maturity Date” means (i) with respect to the Amendment No. 1 Refinancing Term Loans, December 12, 2026 (or, if such day is not a Business Day, the immediately preceding Business Day) or, (ii) with respect to the Amendment No. 4 Term Loans, September 28, 2029 (or, if such day is not a Business Day, the immediately preceding Business Day) or (iii) with respect to any Term Lender that has the maturity date of its Term Loans extended pursuant to a Permitted Amendment, the extended maturity date set forth in any such Loan Modification Agreement.

Term SOFR” means, with respect to any Term SOFR Borrowing denominated in Dollars and for any Interest Period, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor published by the Term

 

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SOFR Administrator on the Business Day first preceding such Periodic Term SOFR Determination Day so long as such Business Day is not more than three (3) Business Days prior to such Periodic Term SOFR Determination Day; provided further that Term SOFR (or any applicable successor rate) for any Interest Period shall not be (x) less than 1.00% per annum with respect to any Amendment No. 1 Refinancing Term Loans and, (y) less than 0.50% per annum with respect to any Amendment No. 4 Term Loans and (z) less than 0.00% per annum with respect to any Revolving Loans.

Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).

Term SOFR Reference Rate” means, for any day and time, with respect to any Term SOFR Borrowing for any Interest Period, the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR.

Termination Date” means the date on which all Commitments have expired or been terminated, all Secured Obligations have been paid in full in cash (other than (x) Secured Swap Obligations not yet due and payable, (y) Secured Cash Management Obligations not yet due and payable and (z) contingent indemnification obligations not yet accrued and payable) and all Letters of Credit have expired or been terminated (other than Letters of Credit that have been cash collateralized or backstopped in an amount, by an institution and otherwise pursuant to arrangements reasonably satisfactory to the applicable Issuing Bank).

Test Period” means, at any date of determination, the period of four consecutive fiscal quarters of Bidco then last ended as of such time for which financial statements have been delivered pursuant to Section 5.01(a) or (b); provided that for any date of determination before the delivery of the first financial statements pursuant to Section 5.01(a) or (b), the Test Period shall be the period of four consecutive fiscal quarters of the Borrower then last ended as of such time for which financial statements are internally available.

Ticking Fee Percentage” means, for any day, a percentage equal to (a) for the period commencing on the Allocation Date through (and including) the earliest to occur of (i) the Effective Date and (ii) the 45th day after the Allocation Date, 0%, (b) if the Effective Date has not occurred prior to the commencement of such period, for the period commencing on the 46th day after the Allocation Date through (and including) the earliest to occur of (i) the Effective Date and (ii) the 90th day after the Allocation Date, 50% of the Applicable Rate used to determine the interest rate applicable to Eurodollar Initial Term Loans (as defined in this Agreement as in effect on the Effective Date), and (c) if the Effective Date has not occurred prior to the commencement of such period, for the period commencing on the 91st day after the Allocation Date through (but excluding) the Effective Date, the Applicable Rate used to determine the interest rate applicable to Eurodollar Initial Term Loans (as defined in this Agreement as in effect on the Effective Date).

Total Net Leverage Ratio” means, as of any date of determination, the ratio, on a Pro Forma Basis, of (a) the sum of (i) Consolidated Total Indebtedness as of such date and (ii) the Reserved Indebtedness Amount applicable at such time to the calculation of the Total Net Leverage Ratio with respect to commitments first obtained as of such date but not utilized as of such date (but only to the extent such commitments are being obtained in reliance on a test based on such ratio) to (b) Consolidated EBITDA for the most recently ended Test Period as of such date; provided that prior to the expiration of the Certain Funds Period, any unused Initial Term Commitments (without duplication of any Indebtedness to be refinanced with the proceeds of such unused commitments) shall be included as Consolidated Total Indebtedness for purposes of this definition.

 

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Transaction Costs” means all fees, costs and expenses incurred or payable by any parent entity of Holdings, Holdings, Bidco, the Borrowers or any Subsidiary in connection with the Transactions, including, without limitation, any upfront fees or original issue discount.

Transactions” means (a) the Financing Transactions, (b) the issuance of the Senior Secured Notes, (c) the Acquisition and the other transactions contemplated by the Acquisition Documents, (d) the Equity Contributions, (e) the Refinancing, (f) any step, circumstance, payment, event, reorganization or transaction contemplated by or relating to the Tax Structure Memorandum (other than any exit steps or cash repatriation described therein), including, in each case, any intermediate steps or actions necessary to implement the steps, circumstances, payments or transactions in relation thereto and/or described therein and (g) the payment of the Transaction Costs.

Treasury Capital Stock” has the meaning assigned to such term in Section 6.05(b)(ii).

Type,” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate,any Term SOFRBenchmark, the Alternate Base Rate or Daily Simple RFR.

“U.K. Borrower” means a Borrower incorporated in the United Kingdom and/or tax resident in the United Kingdom (and for these purposes it shall be assumed that a Borrower incorporated in Guernsey is tax resident in the United Kingdom).

“U.K. Non-Bank Lender” means a Lender (a) which is: (i) a company resident in the United Kingdom for United Kingdom tax purposes, (ii) a partnership each member of which is: (A) a company so resident in the United Kingdom; or (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA or (iii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; (b) which has provided a Tax Confirmation, and (c) in respect of which an officer of HMRC has not given, or has given and has subsequently revoked, a direction under section 931 of the ITA which relates to the payment.

“U.S. Borrower” has the meaning assigned to such term in the preliminary statements hereto.

“U.S. Loan Party” means any Loan Party that is organized in the United States, any state thereof or the District of Columbia.

“U.S. Restricted Subsidiary” means any Subsidiary of Bidco that is organized in the United States, any state thereof or the District of Columbia, other than an Unrestricted Subsidiary.

“U.S. Special Resolution Regimes” has the meaning assigned to such term in Section 9.20.

UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Collateral Agent’s security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a U.S. jurisdiction other than the State of New York, the term “UCC” and “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.

 

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UCP” means, with respect to any commercial Letter of Credit, the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce, in its Publication No. 600 (or such later version thereof as may be reasonably acceptable to the applicable Issuing Bank and in effect at the time of issuance of such Letter of Credit).

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.

Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.

United States Tax Compliance Certificate” has the meaning assigned to such term in Section 2.16(e)(ii)(B)(3).

Unrestricted Subsidiary” means any Subsidiary designated by the Borrower as an Unrestricted Subsidiary pursuant to Section 5.13.

USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended from time to time.

“VAT” (a) any tax imposed in any member state of the European Union pursuant to EC Council Directive 2006/112 on the common system of value added tax and national legislation implementing that Directive or any predecessor to it or supplemental to that Directive; and (b) any other sales or turnover tax of a similar nature, whether imposed in a member state of the European Union in or, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

U.K. Borrower” means a Borrower incorporated in the United Kingdom and/or tax resident in the United Kingdom (and for these purposes it shall be assumed that a Borrower incorporated in Guernsey is tax resident in the United Kingdom).

U.K. Non-Bank Lender” means a Lender (a) which is: (i) a company resident in the United Kingdom for United Kingdom tax purposes, (ii) a partnership each member of which is: (A) a company so resident in the United Kingdom; or (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA or (iii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the

 

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chargeable profits (within the meaning of section 19 of the CTA) of that company; (b) which has provided a Tax Confirmation, and (c) in respect of which an officer of HMRC has not given, or has given and has subsequently revoked, a direction under section 931 of the ITA which relates to the payment.

U.S. Borrower” has the meaning assigned to such term in the preliminary statements hereto.

U.S. Loan Party” means any Loan Party that is organized in the United States, any state thereof or the District of Columbia.

U.S. Restricted Subsidiary” means any Subsidiary of Bidco that is organized in the United States, any state thereof or the District of Columbia, other than an Unrestricted Subsidiary.

U.S. Special Resolution Regimes” has the meaning assigned to such term in Section 9.20.

Viasat” means Viasat, Inc., a Delaware corporation.

Viasat Acquisition” means the acquisition by Viasat, directly or indirectly, of 100% of the issued share capital in Connect Topco Limited, a private company limited by shares and incorporated in Guernsey, an indirect parent company of Initial Holdings, as disclosed in the Form 8-K of Viasat dated November 8, 2021 (the “Viasat Filing”) pursuant to the Purchase Agreement (as defined in the Viasat Filing).

VAT ” (a) any tax imposed in any member state of the European Union pursuant to EC Council Directive 2006/112 on the common system of value added tax and national legislation implementing that Directive or any predecessor to it or supplemental to that Directive; and (b) any other sales or turnover tax of a similar nature, whether imposed in a member state of the European Union in or, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

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.

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

Wholly Owned Subsidiary” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership interests representing 100% of the Equity Interests (other than (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law) are, as of such date, owned, controlled or held by such Person or one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.

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.

 

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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 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.

Yenand “¥” shall meanmeans the lawful currency of Japan.

SECTION 1.02 Classification of Loans and Borrowings.

For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a Eurodollar Loan”, “Term Benchmark Loan”, “ABR Loan” or “RFR Loan”) or by Class and Type (e.g., a Eurodollar Revolving Loan” or Term Benchmark Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing” or “Term Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”, “Term Benchmark Borrowing” or “RFR Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing” or “Term Benchmark Revolving Borrowing”).

SECTION 1.03 Terms Generally.

The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (a) any definition of or reference to any agreement (including this Agreement and the other Loan Documents), instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or other modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (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 and (e) 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, including cash, securities, accounts and contract rights.

SECTION 1.04 Accounting Terms; IFRS.

(a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, IFRS, except as otherwise specifically prescribed herein.

 

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(b) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test contained in this Agreement, the Total Net Leverage Ratio, the Senior Secured First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the Interest Coverage Ratio and any other financial ratio or test shall be calculated on a Pro Forma Basis, including to give effect to all Specified Transactions that have been made during the applicable period of measurement or subsequent to such period and prior to or simultaneously with the event for which the calculation is made, and in making any determination on a Pro Forma Basis, such calculations shall be made in good faith by a Financial Officer and shall be conclusive absent manifest error.

SECTION 1.05 Effectuation of Transactions.

All references herein to Holdings, Bidco and the other Subsidiaries shall be deemed to be references to such Persons, and all the representations and warranties of Holdings, any Intermediate Parent, Bidco and the other Loan Parties contained in this Agreement and the other Loan Documents shall be deemed made, in each case, after giving effect to the Acquisition and the other Transactions to occur on the Effective Date, unless the context otherwise requires.

SECTION 1.06 Limited Condition Transactions.

Notwithstanding anything in this Agreement or any Loan Document to the contrary, when calculating any applicable ratio, the amount or availability of the Incremental Cap, the amount or availability of the Available Amount or any other basket based on Consolidated EBITDA or total assets, or determining other compliance with this Agreement (including the determination of compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom) in connection with the consummation of a Limited Condition Transaction, the date of determination of such ratio, the amount or availability of the Incremental Cap, the amount or availability of the Available Amount or any other basket based on Consolidated EBITDA or total assets, and determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom or other applicable covenant shall, at the option of Bidco (Bidco’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), be deemed to be either (i) the date the definitive agreements for such Limited Condition Transaction are entered into (or, in respect of any transaction described in clause (b) of the definition of “Limited Condition Transaction”, delivery of irrevocable notice or similar event) or (ii) solely in connection with an acquisition to which the City Code applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target company is made in compliance with the City Code (the “LCT Test Date”) and if, after such ratios and other provisions are measured on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other Specified 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 ending prior to the LCT Test Date, Bidco could have taken such action on the relevant LCT Test Date in compliance with such ratios and provisions, such provisions shall be deemed to have been complied with; provided that at the option of Bidco, the relevant ratios and baskets may be recalculated at the time of consummation of such Limited Condition Transaction. For the avoidance of doubt, (x) if any of such ratios or baskets are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in such ratio or basket (including due to fluctuations in Consolidated EBITDA of Bidco and its Subsidiaries or fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (y) such ratios and other provisions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions. If Bidco has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent

 

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calculation of any ratio or basket availability with respect to any other Specified Transaction on or 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, or “Rule 2.7 announcement” in respect of, as applicable, such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction (or, if applicable, the irrevocable notice or similar event is terminated or expires), any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated until such time as the applicable Limited Condition Transaction has actually closed or the definitive agreement with respect thereto has been terminated or expires (or, if applicable, the irrevocable notice or similar event is terminated or expires).

SECTION 1.07 Certain Determinations.

(a) For purposes of determining compliance with any of the covenants set forth in Article V or Article VI (including in connection with any Incremental Facility) at any time (whether at the time of incurrence or thereafter), any Lien, Investment, Indebtedness, Restricted Payment, Asset Sale or Affiliate transaction meets the criteria of one, or more than one, of the categories permitted pursuant to Article V or Article VI (including in connection with any Incremental Facility), Bidco (i) shall in its sole discretion determine under which category such Lien (other than Liens securing the Secured Obligations), Investment, Indebtedness (other than Indebtedness incurred under the Loan Documents), Asset Sale, Restricted Payment or Affiliate transaction (or, in each case, any portion there) is permitted and (ii) shall be permitted, in its sole discretion, to make any redetermination and/or to divide, classify or reclassify under which category or categories such Lien, Investment, Indebtedness, Asset Sale, Restricted Payment or Affiliate transaction is permitted from time to time as it may determine and without notice to the Administrative Agent or any Lender, so long as at the time of such redesignation Bidco would be permitted to incur such Lien, Investment, Indebtedness or Restricted Payment under such category or categories, as applicable. For the avoidance of doubt, if the applicable date for meeting any requirement hereunder or under any other Loan Document falls on a day that is not a Business Day, compliance with such requirement shall not be required until noon on the first Business Day following such applicable date.

(b) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation, any Total Net Leverage Ratio, Senior Secured Net Leverage Ratio, Senior Secured First Lien Net Leverage Ratio and/or Interest Coverage Ratio) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with any such financial ratio or test (any such amounts, the “Incurrence Based Amounts”), it is understood and agreed that the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence Based Amounts in connection with such substantially concurrent incurrence, except that incurrences of Indebtedness and Liens constituting Fixed Amounts shall be taken into account for purposes of Incurrence Based Amounts other than Incurrence Based Amounts contained in Section 6.01 or Section 6.02.

(c) Notwithstanding anything to the contrary herein, the Form Intercreditor Agreements shall be deemed to be reasonable and acceptable to the Administrative Agent and the Lenders, the Administrative Agent and the Lenders shall be deemed to have consented to the use of each such Form Intercreditor Agreement (and to the Administrative Agent’s execution thereof) in connection with any Indebtedness secured by the Collateral that is permitted to be incurred, issued and/or assumed by Bidco or any of its Subsidiaries pursuant to Section 6.01 and Section 6.02 and the Administrative Agent shall be authorized to execute and deliver on behalf of the Secured Parties the applicable Form Intercreditor Agreements.

 

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SECTION 1.08 Additional Alternative Currencies.

(a) Bidco and the Borrowers may from time to time request that Eurodollar Revolving Loans or Term Benchmark Revolving Loans be made and/or Letters of Credit be issued in a currency other than dollars or those specifically listed in the definition of “Alternative Currency.” In the case of any such request with respect to the making of Eurodollar Revolving Loans or Term Benchmark Revolving Loans, such request shall be subject to the approval of the Administrative Agent and all of the Revolving Lenders. In the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent, the applicable Issuing Bank and all of the Revolving Lenders.

(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m. (New York City time), ten (10) Business Days prior to the date of the desired Revolving Borrowing or issuance of Letters of Credit (or such other time or date as may be agreed to by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, each Issuing Bank, in its or their sole discretion). In the case of any such request pertaining to Eurodollar Revolving Loans or Term Benchmark Revolving Loans, theThe Administrative Agent shall promptly notify each Revolving Lender thereof. In the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the applicable Issuing Bank thereof. Each Revolving Lender (in the case of any such request pertaining to Eurodollar Revolving Loans or Term Benchmark Revolving Loans) or each Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m. (New York City time), two (2) Business Days after its receipt of such request as to whether it consents, in its sole discretion, to the making of Eurodollar Revolving Loans or Term Benchmark Revolving Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.

(c) Any failure by a Revolving Lender or an Issuing Bank, as the case may be, to respond to such request within the time period specified in the last sentence of clause (b) above shall be deemed to be a refusal by such Revolving Lender or such Issuing Bank, as the case may be, to permit Eurodollar Revolving Loans or Term Benchmark Revolving Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Revolving Lenders consent to making Eurodollar Revolving Loans or Term Benchmark Revolving Loans in such requested currency, the Administrative Agent shall so notify Bidco and the Borrowers and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Borrowings of Eurodollar Revolving Loans or Term Benchmark Revolving Loans. If the Administrative Agent and each Issuing Bank consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify Bidco and the Borrowers and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.08, the Administrative Agent shall promptly so notify Bidco and the Borrowers.

SECTION 1.09 Currency Equivalents Generally.

Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Eurodollar Loan or Term Benchmark Loan or RFR Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in dollars, but such Borrowing, Eurodollar Loan, Term Benchmark Loan, RFR Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the applicable Issuing Bank, as the case may be.

 

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SECTION 1.10 Divisions.

Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company or other Person, or an allocation of assets to a series of a limited liability company or other Person (or the unwinding of such a division or allocation) (any such transaction, a “Division”), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any Division of a limited liability company or other Person shall constitute a separate Person hereunder (and each Division of any limited liability company or other Person that is a Subsidiary, Restricted Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

SECTION 1.11 Agreed Security Principles; Guarantee Limitations.

The Guarantee Agreement, the Security Documents, the determination of Collateral and assets that constitute Excluded Assets of any Non-U.S. Loan Party and each other guaranty and security document delivered or to be delivered under this Agreement, and any obligation to enter into such document or obligation and/or provide security in any Collateral, by any Non-U.S. Loan Party shall be subject in all respects to the Agreed Security Principles and the Guarantee Limitations.

SECTION 1.12 Additional Borrowers.

Notwithstanding anything in Section 9.02 to the contrary, following the Effective Date, Bidco and the Borrowers may request that one or more Subsidiaries of Bidco that is a Restricted Subsidiary incorporated under the laws of England and Wales be added as an additional Revolving Borrower under the Revolving Facility by delivering to the Administrative Agent an Additional Borrower Agreement executed by such Subsidiary and the Borrower Representative. Such Subsidiary shall for all purposes of this Agreement be a Revolving Borrower and a Borrower hereunder after the latest of (i) five (5) Business Days (or such shorter period as the Administrative Agent shall agree) after delivery of such Additional Borrower Agreement and (ii) receipt by the Lenders and the Administrative Agent of such documentation and other information reasonably requested by the Lenders or the Administrative Agent for purposes of complying with all necessary “know your customer” or other similar checks under all applicable laws and regulations without any written objection submitted by the Lenders or the Administrative Agent within five (5) Business Days of the date of receipt of such documentation and other information; provided that each Additional Borrower shall also be a Guarantor. Any obligations in respect of Borrowings by any Additional Borrower under this Agreement will constitute “Loan Document Obligations” for all purposes of the Loan Documents. Promptly following receipt of any Additional Borrower Agreement, the Administrative Agent shall send a copy thereof to each Lender.

SECTION 1.13 Borrower Representative. Each Borrower hereby designates the Finco Borrower as its borrower representative (the “Borrower Representative”). The Borrower Representative may act as agent on behalf of each of the Borrowers for the purposes of issuing notices of Borrowing and notices of conversion/continuation of any Loans pursuant to Section 2.02 or 2.03 or similar notices, giving instructions with respect to the disbursement of the proceeds of the Loans, selecting interest rate options, requesting Letters of Credit, giving and receiving all other notices and consents hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants and certifications) on behalf of any Borrower or the Borrowers under the Loan Documents. The Borrower Representative hereby accepts such appointment. Each Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by the Borrower Representative shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.

 

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SECTION 1.14 Guernsey Customary Law