8-K

 

 

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): July 19, 2019

 

 

GLOBAL EAGLE ENTERTAINMENT INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-35176   27-4757800
(State or other jurisdiction
of incorporation)
  (Commission
File Number)
  (IRS Employer
Identification No.)

6080 Center Drive, Suite 1200, Los Angeles, California 90045

(Address of principal executive offices, including zip code)

Registrant’s telephone number, including area code: 310-437-6000

Not Applicable

(Former name or former address, if changed since last report)

 

 

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 (see General Instruction A.2. below):

 

 

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(s)

 

Name of each exchange

on which registered

Common stock, $0.0001 par value   ENT   The Nasdaq Capital Market

Indicate by check mark whether the registrant is an emerging growth company as defined in 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 July 19, 2019, Global Eagle Entertainment Inc. (the “Company” or “we”) entered into an Omnibus Incremental Term Loan and Seventh Amendment to Credit Agreement and Amendment to Security Agreement (the “First Lien Amendment”) among the Company, the guarantors party thereto (the “Guarantors”), the lenders party thereto and Citibank, N.A., as administrative agent (in such capacity, the “Administrative Agent”), which First Lien Amendment amends the terms of (i) that certain Credit Agreement, dated as of January 6, 2017, by and among the Company, the Guarantors identified on the signature pages thereto, each lender from time to time party thereto (collectively, the “Lenders”) and Citibank, N.A., as Administrative Agent, L/C Issuer, and Swing Line Lender (as amended, supplemented or otherwise modified from time to time, including pursuant to the First Lien Amendment, the “Credit Agreement”) and (ii) that certain Security Agreement, dated as of January 6, 2017 (as amended, supplemented or otherwise modified from time to time, including pursuant to the First Lien Amendment, the “Security Agreement”), by and among the Grantors identified on the signature pages thereto and the Administrative Agent.

In addition, on July 19, 2019, the Company entered into a Second Amendment to Securities Purchase Agreement and Amendment to Security Agreement (the “Second Lien Amendment”) among the Company, the Guarantors, Cortland Capital Market Services LLC, as collateral agent, and each purchaser party thereto, which Second Lien Amendment amends that certain Securities Purchase Agreement, dated as of March 8, 2018, by and among the Company, Searchlight II TBO, L.P., Searchlight II TBO-W, L.P., and Cortland Capital Market Services LLC, as collateral agent (as amended, supplemented or otherwise modified from time to time, including pursuant to the Second Lien Amendment, the “Purchase Agreement”; the notes issued thereunder, the “Second Lien Notes”). In addition, in connection with the foregoing amendments, the applicable parties to the Intercreditor Agreement (as defined in the Credit Agreement) agreed to certain amendments to that agreement (the “Intercreditor Amendment” and together with the First Lien Amendment and the Second Lien Amendment, the “Amendments”).

First Lien Amendment

The First Lien Amendment modified the Credit Agreement, including, with respect to the following terms:

 

   

Certain of the Lenders provided the Company with incremental term loans (the “Incremental Term Loans”) in the aggregate principal amount of $40,000,000, which Incremental Term Loans are pari passu in right of payment and security with the existing term loans under the Credit Agreement.

 

   

The interest rate and maturity date for the Incremental Term Loans are the same as the existing term loans under the Credit Agreement.

 

   

The amortization schedule for the existing term loans is being reset as of the closing date of the First Lien Amendment, which requires an adjustment to the stated amortization rate from 5.0% per annum, to 5.33333% per annum, but which adjustment will not change the actual cash amount of amortization payments received by the existing term loan Lenders in respect of their existing term loans.

 

   

All Incremental Term Loans and all existing term loans under the Credit Agreement have been converted into a new class of term loans under the Credit Agreement (“Amortization Holiday Loans”), which shall amortize on the following reduced schedule (from the previous schedule of 5.33333% per annum (payable quarterly)): (i) 1.0666% per annum (payable quarterly) for a four (4) payment date period commencing on and including the September 30, 2019 payment date and continuing until and including the June 30, 2020 payment date and (ii) 2.6666% per annum (payable quarterly) for the September 30, 2020 payment date and the December 31, 2020 payment date. To the extent certain additional conditions described in the First Lien Amendment are satisfied as of future principal payment dates, the amortization holiday may be extended on such principal payment dates with respect to the Amortization Holiday Loans. 100% of the existing term loans will be converted into Amortization Holiday Loans.

 

   

The Incremental Term Loans were issued with original issue discount of 5.5% and each Lender providing Incremental Term Loans received an incremental term fee equal to 1.00% of the principal amount of the Incremental Term Loans provided by such Lender. In addition, each existing term loan Lender that has agreed to convert its existing term loans into Amortization Holiday Loans received an amendment fee equal to 0.25% of the principal amount of such Lender’s existing term loans.

 

   

As additional collateral security, 100% of the equity interests of (i) all domestic subsidiaries not previously pledged (including any immaterial subsidiaries) and (ii) all first tier foreign subsidiaries, in each case, shall be pledged (the “Additional Equity Pledges”). With respect to foreign subsidiaries, before giving effect to the First Lien Amendment, only 65% of the equity interests of material first tier foreign subsidiaries was pledged as collateral under the Security Agreement.

 

   

The definition of “Consolidated EBITDA” has been amended and the quarterly net first lien leverage ratio financial maintenance covenant levels have been reset.

 

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Certain exceptions to the negative covenants (including with respect to debt incurrence, liens, investments and asset sales) have been modified or removed and the Company is prohibited from making any cash interest or principal payments on the Second Lien Notes.

 

   

Other than in the case of casualty events, the Company’s reinvestment rights in connection with asset dispositions has been removed. In addition, the prepayment waterfall in connection with asset sales has been modified to:

 

   

permit the Company to retain up to the first $8,000,000 of aggregate net proceeds received by the Company and its subsidiaries in connection with asset sales in any fiscal year.

 

   

If the Company and its subsidiaries receive more than $50,000,000 but less than $100,000,000 of aggregate net proceeds from asset sales in any fiscal year, permit the Company to retain up to an additional $4,000,000 of such aggregate net proceeds after using $50,000,000 to prepay the term loans as required by the mandatory prepayment provisions of the Credit Agreement (for a total of up to $12,000,000 when combined with the $8,000,000 described in the immediately preceding bullet point).

 

   

If the Company and its subsidiaries receive more than $100,000,000 of aggregate net proceeds from asset sales in any fiscal year, permit the Company to retain up to an additional $12,000,000 of such aggregate net proceeds after using $100,000,000 to prepay the term loans as required by the mandatory prepayment provisions of the Credit Agreement (for a total of up to $24,000,000 when combined with the $12,000,000 described in the immediately preceding bullet point).

Second Lien Amendment

The Second Lien Amendment modified the Purchase Agreement, including with respect to the following terms:

 

   

Unless the terms of the Credit Agreement permit cash interest payments, all interest payments under the Second Lien Notes shall be paid in-kind at a rate per annum of 12%, payable semi-annually.

 

   

The Second Lien Notes are secured by the Additional Equity Pledges on a second lien basis, subject to the terms of the existing intercreditor agreement.

 

   

The existing prepayment premium schedule on the Second Lien Notes has been replaced with a revised make-whole premium extended through maturity of the Second Lien Notes.

 

   

Corresponding changes have been made to the Purchase Agreement including with respect to definition of “Consolidated EBITDA” and the negative covenant exceptions, in each case, to the extent applicable, in order to mirror the changes to the Credit Agreement contemplated by the First Lien Amendment.

The descriptions contained herein of the Amendments are qualified in their entirety by reference to the terms of the First Lien Amendment, the Second Lien Amendment, and the Intercreditor Amendment, which are attached hereto as Exhibits 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference.

 

Item 2.02

Results of Operations and Financial Condition.

On July 19, 2019, the Company issued a press release (the “Press Release”) announcing, among other things, the Company’s entry into the Amendments. A copy of the Press Release is furnished hereto as Exhibit 99.1 and incorporated herein by reference.

The information contained in Exhibit 99.1 attached hereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act, except as expressly set forth by specific reference in such filing.

 

Item 2.03

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

The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by

reference.

 

Item 7.01

Regulation FD Disclosure.

In connection with the discussions regarding the First Lien Amendment, the Company furnished to the lenders party thereto a management presentation and certain other information regarding the Company (the “Disclosure Information”), a copy of which is furnished hereto as Exhibit 99.2 and incorporated herein by reference. Statements made and information included in the Disclosure Information are made as of the date of such Disclosure Information and not as of the date hereof.

 

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Subsequent to the date on which the Disclosure Information was provided to the lenders, the Company’s views on some of the matters set forth therein may have changed. As such, the Company’s future public filings may contain information that updates or supersedes some of the information contained in the Disclosure Information; however, the Company is under no obligation to update such Disclosure Information for the date hereof or any future date.

The information contained in Exhibit 99.2 attached hereto shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such filing.

Cautionary Note Regarding Forward-Looking Statements

In this Current Report on Form 8-K, we make “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are based on information available to us as of the date hereof and on our current expectations, forecasts and assumptions, and involve substantial risks and uncertainties. Actual results may vary materially from those expressed or implied by the forward-looking statements herein due to a variety of other factors, including the risks and uncertainties set forth in our most recent Annual Report on Form 10-K and any subsequently filed Quarterly Reports on Form 10-Q.

The forward-looking statements herein speak only as of the date the statements are made (which is the date of this Current Report on Form 8-K). Investors should not put undue reliance on any forward-looking statements. We assume no obligation to update forward-looking statements to reflect actual results, changes in assumptions or changes in other factors affecting forward-looking information, except to the extent required by applicable securities laws. If we do update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.

 

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit No.   

Description

10.1    Omnibus Incremental Term Loan and Seventh Amendment to Credit Agreement and Amendment to Security Agreement, dated as of July  19, 2019, by and among Global Eagle Entertainment Inc., the guarantors party thereto, the lenders party thereto, and Citibank, N.A., as administrative agent.
10.2    Second Amendment to Securities Purchase Agreement and Amendment to Security Agreement, dated as of July  19, 2019, by and among Global Eagle Entertainment. Inc., the guarantors party thereto, Cortland Capital Market Services LLC, as collateral agent, and each purchaser party thereto.
10.3    Amendment No. 1 to Intercreditor And Subordination Agreement and Consent and Reaffirmation, dated as of July 19, 2019, by and among Global Eagle Entertainment Inc., certain guarantors party thereto, Citibank, N.A., as administrative agent for the First Lien Credit Agreement Secured Parties, and Cortland Capital Market Services LLC, as collateral agent for the Second Lien Securities Purchase Agreement Secured Parties.
99.1    Press Release dated July 19, 2019.
99.2    Disclosure Information.

 

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SIGNATURE

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.

 

GLOBAL EAGLE ENTERTAINMENT INC.
By:   /s/ Christian Mezger
  Name: Christian Mezger
  Title: Chief Financial Officer

Dated: July 19, 2019

EX-10.1

Exhibit 10.1

Execution Version

This OMNIBUS INCREMENTAL TERM LOAN AND SEVENTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO SECURITY AGREEMENT (this “First Omnibus Amendment”), dated as of July 19, 2019, by and among GLOBAL EAGLE ENTERTAINMENT INC., a Delaware corporation (the “Company” or the “Borrower”), the Guarantors identified on the signature pages hereto (the “Guarantors” and, together with the Borrower being collectively, the “Loan Parties”), the Lenders (as defined below) party hereto, and CITIBANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”).

RECITALS

WHEREAS, reference is made to the Credit Agreement, dated as of January 6, 2017, as amended by (i) the First Amendment and Limited Waiver to Credit Agreement dated as of May 4, 2017, (ii) the Amendment to First Amendment and Limited Waiver to Credit Agreement and Second Amendment to Credit Agreement dated as of June 29, 2017, (iii) the Third Amendment to Limited Waiver to Credit Agreement and Third Amendment to Credit Agreement dated as of October 2, 2017, (iv) the Fourth Amendment to Limited Waiver to Credit Agreement and Fourth Amendment to Credit Agreement dated as of October 31, 2017, (v) the Fifth Amendment to Limited Waiver to Credit Agreement and Fifth Amendment to Credit Agreement dated as of December 22, 2017 and (vi) the Sixth Amendment to Credit Agreement dated as of March 8, 2018 (collectively, the “Credit Agreement”; and the Credit Agreement as amended hereby, being the “Amended Credit Agreement”), among the Borrower, the Guarantors party thereto from time to time, the Administrative Agent, each lender from time to time party thereto (collectively, the “Lenders” and, individually, a “Lender”), CITIBANK, N.A., as L/C Issuer, and CITIBANK, N.A., as Swing Line Lender;

WHEREAS, reference is made to the Securities Purchase Agreement, dated as of March 8, 2018, as amended and/or supplemented by (i) the First Amendment to Securities Purchase Agreement dated as of March 27, 2018 and (ii) the Joinder to Securities Purchase Agreement dated as of March 27, 2018 (collectively, the “Purchase Agreement”; and the Purchase Agreement as amended by the Second Lien Amendment (as defined below), being the “Amended Purchase Agreement”), among the Company, Cortland Capital Market Services LLC, as collateral agent (in such capacity, the “Collateral Agent”), and the purchasers party thereto (collectively, the “Purchasers” and, individually, a “Purchaser”);

WHEREAS, the Company has requested that the Collateral Agent and the Purchasers make certain amendments to the Purchase Agreement including, but not limited to, (i) conforming changes in connection with this First Omnibus Amendment, (ii) modifications to the interest payment section therein that provide that interest on the Second Lien Notes will be payable only in kind following the First Omnibus Amendment Effective Date (until cash payments are otherwise permitted pursuant to the terms of the Amended Credit Agreement) and (iii) amendments to the prepayment section therein such that the make-whole protection on Second Lien Notes will be extended to (but excluding) June 30, 2023 from March 27, 2021 (such amendments, collectively, the “Second Lien Amendment”);

WHEREAS, reference is also made to the Security Agreement, dated as of January 6, 2017 (as heretofore amended, the “Security Agreement”; and the Security Agreement as amended hereby, being the “ Amended Security Agreement”), among the Loan Parties identified therein as “Grantors” and the Administrative Agent;


WHEREAS, the Borrower has requested an additional tranche of term loans from certain of the Term Lenders (the “New Incremental Term Lenders”) in an aggregate principal amount of $40,000,000 and pari passu in right of payments, security and priority with the existing Term Loans and Term Lenders under the Credit Agreement (the “New Incremental Term Loans”);

WHEREAS, pursuant to Section 10.01 of the Credit Agreement, the Borrower and the Required Lenders (as defined in the Credit Agreement) may amend the Credit Agreement and the other Loan Documents for certain purposes;

WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders amend the Credit Agreement and the Security Agreement as set forth herein and, subject to the terms and conditions set forth in this First Omnibus Amendment, the Administrative Agent and the Lenders hereto (constituting in excess of the Required Lenders) hereby agree to such request;

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1. Definitions. Each capitalized term used and not otherwise defined in this First Omnibus Amendment shall have the meaning assigned to such term in the Amended Credit Agreement, and where not therein defined, such capitalized term shall have the meaning assigned to such term in the Amended Security Agreement.

Section 2. Agreements. Effective as of the First Omnibus Amendment Effective Date (as defined below):

(a)    The New Incremental Term Lenders, as Lenders under the Amended Credit Agreement, agree that the aggregate amount of the New Incremental Term Loan Commitment shall be $40,000,000 and each of the New Incremental Term Lenders shall have New Incremental Term Loan Commitments in the amount set forth opposite such New Incremental Term Lender’s name on Schedule 2.01(c) to the Amended Credit Agreement.

(b)    Upon the extension thereof, the New Incremental Term Loan shall (i) be deemed to be made in addition to the Loans outstanding as of the date hereof, and not in repayment thereof, and (ii) constitute “Loans,” “Obligations,” “Term Loans,” “Secured Obligations” and “Guaranteed Obligations” under the Amended Credit Agreement, the Amended Security Agreement and each of the other Loan Documents and, in each case, shall have all of the benefits thereof and be secured for the benefit of the Secured Parties to the same extent as the other Secured Obligations as provided in any Loan Document.

(c)    The New Incremental Term Lenders shall be “Secured Parties” under the Security Agreement and “Lenders” under the Amended Credit Agreement for all purposes under the Loan Documents and agree to be bound by the terms thereof.

 

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(d)    The Borrower agrees to pay on the First Omnibus Amendment Effective Date (i) to the Administrative Agent for the ratable benefit of each of the Initial Term Loan Lenders party hereto, in consideration for among other things, agreeing that its Term Loans will be subject to the amortization holiday set forth in Section 2.07(e) of the Amended Credit Agreement, a fee, in cash, equal, in aggregate, to 0.25% of each such Initial Term Loan Lender’s outstanding Initial Term Loans under the Credit Agreement immediately prior to the First Omnibus Amendment Effective Date (the “Consent Fee”), (ii) to Citibank, N.A., a fee, as set forth in a separate Engagement Letter dated as of the date hereof (the “Citibank Engagement Letter”) among the Borrower and Citibank, N.A. (the “Citibank Fee”) and (iii) to the New Incremental Term Lenders party hereto, a fee, in cash, equal to 1.00% of the New Incremental Term Loan (the “New Incremental Term Fee”); it being acknowledged that such fee shall be paid in trust to the Initial New Incremental Term Lender for the benefit of each of the New Incremental Term Lenders pending closing of the initial distribution thereof in accordance with the agreements regarding the distribution and allocation of the New Incremental Term Loans to and among the Initial New Incremental Term Lender and the New Incremental Term Lenders subject thereto (at which point it shall be paid to such New Incremental Term Lenders).

(e)    As among all of the Secured Parties for all purposes of all Loan Documents, it is hereby acknowledged and agreed that the Obligations, the Secured Obligations and Guaranteed Obligations owing to the New Incremental Term Lenders shall be pari passu in right of payments, security and priority with the existing Loans and Lenders under the Amended Credit Agreement with respect to the Obligations, the Secured Obligations and Guaranteed Obligations and the Liens and Collateral securing the foregoing.

Section 3.    Amendments to Credit Agreement.

(a)    The Credit Agreement (excluding the annexes, schedules and exhibits thereto) is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in the marked blacklined copy of the Amended Credit Agreement attached as Annex I attached hereto (which shall be the Amended Credit Agreement). Said Annex I has been blacklined to show all changes from the Credit Agreement as in effect immediately prior to the date hereof, it being agreed that, by virtue of this First Omnibus Amendment and upon the effectiveness hereof, any amendments or other modifications to the Credit Agreement prior to the date hereof that are not reflected in said Annex I shall cease to be in effect or, as the case may be, shall be modified as set forth in said Annex I, and Annex I shall for all purposes be deemed to constitute the Amended Credit Agreement.

(b)    Schedules to the Amended Credit Agreement. (i) Each of Schedules, 1.01(B), 5.11, 5.18(d), 6.23, 7.01(b), 7.03(b), 7.05(v), 7.08(h) and 10.02 to the Credit Agreement are hereby amended and restated in their entirety to read as set forth on Annex II attached hereto and (ii) a new Schedule 2.01(c) shall be added to the Amended Credit Agreement in the form of Annex II attached hereto. References to each of the foregoing schedules in any of the Loan Documents shall be deemed to be references to such schedules as set forth on such Annex II.

(c)    Exhibits to the Amended Credit Agreement. Exhibits D-1, E-1 and J to the Credit Agreement are hereby amended and restated in their entirety to read as set forth on Annex III attached hereto. References to the foregoing exhibits in any of the Loan Documents shall be deemed to be references to such exhibits as set forth on such Annex III.

 

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(d)    In addition to the foregoing, by consenting to this First Omnibus Amendment, each Term Lender party hereto is agreeing that all of their existing Term Loans heretofore extended by them and any New Incremental Term Loan extended by them pursuant to the Amended Credit Agreement shall be deemed to be a separate Class of Loans designated as Amortization Holiday Loans and shall be subject to the amortization holiday to the extent set forth in Section 2.07(e) of the Amended Credit Agreement.

Section 4.    Amendments to Security Agreement.

(a)    Section 1.01 of the Security Agreement is hereby amended by deleting the definition of “Article 9 Collateral” appearing therein; and the Security Agreement (other than in Section 3.01(a) of the Security Agreement, which is addressed in Section 4(h) of this First Omnibus Amendment) is hereby amended to replace all references to “Article 9 Collateral” therein with references to “Collateral.”

(b)    The definition of “Collateral” set forth in Section 1.01 of the Security Agreement is hereby amended and restated in its entirety to read as follows:

““Collateral” means the Collateral described in Section 3.01 and the Pledged Collateral.”

(c)    The definition of “Grantor” set forth in Section 1.01 of the Security Agreement is hereby amended and restated in its entirety to read as follows:

““Grantor” means the Borrower, each Guarantor, and each Guarantor that is a wholly-owned Domestic Subsidiary that becomes or is required to become a party to this Agreement and the Credit Agreement on or after the First Omnibus Amendment Effective Date.”

(d)    The definition of “Subsidiary Parties” set forth in Section 1.01 of the Security Agreement is hereby amended and restated in its entirety to read as follows:

““Subsidiary Parties” means (a) the Subsidiaries identified on Schedule I and (b) each other Subsidiary that becomes a party to this Agreement as a Subsidiary Party on or after the First Omnibus Amendment Effective Date.”

(e)    Section 2.01(i) of the Security Agreement is hereby amended by amending and restating the proviso therein immediately following the reference to “(collectively, the “Pledged Equity”);” as follows:

provided that the Pledged Equity shall not include any Excluded Assets;”

 

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(f)    Section 2.02(a) of the Security Agreement is hereby amended by (i) replacing all of the references to “Closing Date” therein with a reference to “First Omnibus Amendment Effective Date” and (ii) amending and restating the proviso therein as follows:

provided that except as specified by the Required Lenders, no Grantor shall be required to take any action under the law of any non-U.S. jurisdiction to create or perfect a security interest in any assets located outside the United States or any other assets that require such action, including any intellectual property registered in any non-U.S. jurisdiction (and no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction shall be required).”

(g)    Section 2.02(b) of the Security Agreement is hereby amended by replacing the reference therein to “$5,000,000” with a reference to “$1,000,000”.

(h)    Section 3.01(a) of the Security Agreement is hereby amended by (i) replacing the reference to “(collectively, the “Article 9 Collateral”)” therein with a reference to “(collectively, with the Pledged Collateral, the “Collateral”), (ii) deleting the reference to “and” at the end of clause (xiii) therein, (iii) redesignating the current clause “(xiv)” as clause “(xviii),” and (iv) adding new clauses (xiv), (xv), (xvi) and (xvii) thereto as follows:

“(xiv) all Deposit Accounts, Securities Accounts and Commodities Accounts (other than Excluded Deposit Accounts);

(xv) all leases of real property and all proceeds thereof;

(xvi) all payment intangibles;

(xvii) all money, cash or other Cash Equivalents; and”

(i)    Section 3.01(d) of the Security Agreement is hereby amended and restated in its entirety to read as follows:

“(d) The Administrative Agent is hereby authorized to file with the USPTO or the USCO (or any successor office) additional documents (including any Intellectual Property Security Agreements and/or supplements thereto) as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in the Registered Intellectual Property Collateral of each Grantor in which a security interest has been granted by each Grantor, and naming any Grantor as debtor and the Administrative Agent as secured party.”

(j)    Section 3.01 of the Security Agreement is hereby further amended by deleting Section 3.01(e) therein in its entirety and replacing it with a reference to “[Reserved].”.

(k)    Section 3.02(d) of the Security Agreement is hereby amended by deleting the reference to “and” at the end of clause (ii) therein and adding the following at the conclusion thereof as a new clause (iv) thereto as follows:

“, and (iv) subject to the entry by the applicable Grantor, the Administrative Agent and the bank, securities intermediary or commodities intermediary, in each case, with whom such Deposit Account, Securities Account or Commodities Account is maintained (as applicable) into a customary control agreement with respect to each Deposit Account, Securities Account or Commodities Account, a perfected security interest in all such

 

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Deposit Accounts, Securities Accounts or Commodities Accounts (other than any account constituting an Excluded Deposit Account or an Excluded Asset) in which a security interest may be perfected by entering into control agreements pursuant to the Uniform Commercial Code.”

(l)    Section 3.02(f) of the Security Agreement is hereby amended by replacing the reference therein to “$5,000,000” with a reference to “$500,000”.

(m)    Section 3.02 of the Security Agreement is hereby further amended by adding a new clause (g) thereto as follows:

“(g) As of the First Omnibus Amendment Effective Date, Schedule IV hereto sets forth a true and complete list and description, of all Deposit Accounts, Securities Accounts, Commodities Accounts (except Excluded Deposit Accounts) and all other depositary accounts maintained by each Grantor.”

(n)    Section 3.03(e) of the Security Agreement is hereby amended by replacing the reference therein to “$2,500,000” with a reference to “$1,000,000”.

(o)    Section 3.03 of the Security Agreement is hereby further amended by adding a new Section 3.03(h) thereto as follows:

“(h) Deposit Accounts Covenants.

(i)    In the case of any Deposit Accounts, Securities Accounts or Commodities Accounts existing on the First Omnibus Amendment Effective Date (other than any account constituting an Excluded Deposit Account or any Excluded Asset), such Grantor shall enter into a customary control agreement with the Administrative Agent and the applicable bank, securities intermediary or commodities intermediary with respect to such account in form and substance reasonably acceptable to the Administrative Agent within the time period required by Section 6.23 of the Amended Credit Agreement.

(ii)    Except as provided by Section 6.23 of the Credit Agreement, the Grantors shall deliver deposit account control agreements or other similar agreement from each financial institution at which such Grantor maintains any Deposit Account, Securities Account or Commodities Account (other than an Excluded Deposit Account) executed by and among such financial institution, the Administrative Agent and such Grantor sufficient to give the Administrative Agent “control” (within the meaning set forth in Section 9-104 of the Uniform Commercial Code) of such account and otherwise to be in form and substance acceptable to the Administrative Agent, in each case, to the extent acquired after the First Omnibus Amendment Effective Date, within 60 days after opening any such account.”

(p)    Section 6.11 of the Security Agreement is hereby amended by deleting Section 6.11(b) therein in its entirety and replacing it with a reference to “[Reserved].”.

(q)    Section 6.11(e) of the Security Agreement is hereby amended by replacing the reference therein to the words “(a), (b), (c) or (d) of this Section 6.11” with a reference to “(a), (c) or (d) of this Section 6.11”.

 

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(r)    Section 6.12 of the Security Agreement is hereby amended and restated in its entirety to read as follows:

“Section 6.12 Additional Grantors. Pursuant to Section 6.11 of the Credit Agreement, certain additional Subsidiaries of the Grantors may be required to enter in this Agreement as Grantors. Upon execution and delivery by the Administrative Agent and a Subsidiary of a Security Agreement Supplement, such Subsidiary shall become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of any such instrument shall not require the consent of any other Grantor hereunder, except to the extent obtained on or prior to such date and in full force and effect on such date. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.”

(s)    Schedules to the Amended Security Agreement. (i) Schedules I, II and III to the Security Agreement are hereby amended and restated as set forth on Annex IV attached hereto and (ii) a new Schedule IV shall be added to the Amended Security Agreement in the form of Annex IV attached hereto. References to each such schedule shall be deemed to be references to such schedules as set forth on Annex IV attached hereto.

(t)    Exhibits to the Amended Security Agreement. Exhibit II to the Security Agreement is hereby amended and restated in its entirety to read as set forth on Annex V attached hereto. References to the foregoing exhibit in any of the Loan Documents shall be deemed to be references to such exhibit as set forth on such Annex V.

Section 5. Consent to Amendments to Purchase Agreement and Notes Intercreditor Agreement.

The Lenders party hereto (constituting the Required Lenders) hereby consent to the execution, delivery and performance of the Second Lien Amendment attached hereto as Annex VI and the Lenders party hereto (constituting the Required Lenders) hereby direct the Administrative Agent to execute, deliver and perform its obligations under the Amendment No. 1 to Intercreditor and Subordination Agreement and Consent and Reaffirmation attached hereto as Annex VII (the “Amendment No. 1 to Intercreditor and Subordination Agreement”) pursuant to which (x) the Administrative Agent, on behalf of itself and the Secured Parties, shall consent to the execution, delivery and performance of the Second Lien Amendment by the parties thereto and the amendments to the Purchase Agreement contained in the Second Lien Amendment and (y) certain modifications to the subordination provisions shall be made.

Section 6. Representations and Warranties.

(a)    Power; Authorization; Enforceable Obligations. The Borrower and each other Loan Party has the requisite power and authority, and the legal right, to enter into this First Omnibus Amendment. The Borrower and each other Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this First Omnibus Amendment. This First Omnibus Amendment constitutes a legal, valid and binding obligation of the Borrower and each other Loan Party signatory hereto, enforceable against the

 

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Borrower and each other Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

(b)    Accuracy of Representations and Warranties. Immediately before and after giving effect to this First Omnibus Amendment on the First Omnibus Amendment Effective Date, the representations and warranties of the Borrower and each other Loan Party set forth in the Loan Documents (including, for the avoidance of doubt, in the Credit Agreement) are true and correct in all material respects on and as of the First Omnibus Amendment Effective Date to the same extent as though made on and as of the First Omnibus Amendment Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

(c)    No Default or Event of Default has occurred and is continuing or would result from the execution, delivery or performance of this First Omnibus Amendment or the borrowing or making of the New Incremental Term Loans.

(d)    Since December 31, 2018, no Material Adverse Effect has occurred or would result from the execution, delivery or performance of this First Omnibus Amendment or the borrowing or making of the New Incremental Term Loans.

Section 7.    [Reserved].

Section 8. Effectiveness; Conditions Precedent. This First Omnibus Amendment and each of the amendments to the Loan Documents referenced herein shall become effective on the date (such date, the “First Omnibus Amendment Effective Date”) that the following conditions have been satisfied (except, in each case, as otherwise provided in Section 6.23 of the Amended Credit Agreement):

(a)    The Administrative Agent shall have received, in form and substance satisfactory to the Required Lenders and the Administrative Agent, each of the following:

(i)    Fully-executed counterparts from all parties of this First Omnibus Amendment (and all schedules and exhibits) executed by Initial Term Loan Lenders holding at least 90% of the outstanding principal amount of Initial Term Loans.

(ii)    The Joinder Agreements executed by IFE Services (USA), Inc. and MTN International, Inc.

(iii)    The Security Agreement Supplements executed by IFE Services (USA), Inc. and MTN International, Inc.

 

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(iv)    Stock certificates, if any, representing the Pledged Equity referred to in the Security Agreement including (x) with respect to any first-tier Foreign Subsidiary, any previously unpledged Equity Interest of such entity (to the extent it is not an Excluded Subsidiary) and (y) any other Equity Interest set forth in clause (a)(xviii) below, together in each case with executed (in blank) stock powers relating thereto, all in form and substance acceptable to the Administrative Agent and the Required Lenders.

(v)    UCC-1 financing statements for each of IFE Services (USA), Inc. and MTN International, Inc. in appropriate form for filing in the respective filing office designated thereon.

(vi)    Deposit account control agreements or other similar agreement from each financial institution at which each Grantor maintains a Deposit Account, Securities Account, Commodities Account or other similar account (other than the Excluded Deposit Accounts) executed by and among such financial institution, the Administrative Agent and such Grantor sufficient to give the Administrative Agent “control” (within the meaning set forth in Section 9-104 of the Uniform Commercial Code) of such account and otherwise to be in form and substance acceptable to the Required Lenders.

(vii)    Fully-executed counterparts from all parties of the Citibank Engagement Letter.

(viii)    A master consent to assignment executed by the Borrower consenting to the assignment by the Initial New Incremental Term Lender to the New Incremental Term Loan Lenders of the New Incremental Term Loans.

(ix)    Fully-executed counterparts from all parties of the Amendment No. 1 to the Intercreditor and Subordination Agreement.

(x)    Fully-executed counterparts from all parties of the Second Lien Amendment, together with all other documentation relating thereto.

(xi)    A Committed Loan Notice executed by the Borrower specifying a funding date of July 19, 2019, in respect of the New Incremental Term Loan Commitment which shall be given in accordance with the time periods and meeting the other requirements specified in Section 2.02 of the Amended Credit Agreement.

(xii)    Lien Searches. Results of proper and customary Lien, bankruptcy, judgment, copyright, patent and trademark searches with respect to each Loan Party in the applicable jurisdictions in reasonably acceptable scope and with acceptable results to the Administrative Agent and the Required Lenders.

(xiii)    Perfection Certificate. An updated Perfection Certificate relating to the Loan Parties in form and substance satisfactory to the Administrative Agent and the Required Lenders.

 

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(xiv)    Officer’s Certificates. A certificate of a Responsible Officer of each Loan Party dated the First Omnibus Amendment Effective Date and certifying that attached thereto are (i) true, correct and complete copies of the charter and by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the First Omnibus Amendment Effective Date, (ii) true, correct and complete copies of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization (iii) a certificate as to the good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority from such Loan Party’s jurisdiction of organization, (iv) the names of the authorized officers authorized to sign the Loan Documents and their true signatures and (v) that attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this First Omnibus Amendment, the Amended Credit Agreement, the Amended Security Agreement and the transactions contemplated hereby and thereby and that such resolutions have not been modified, rescinded or amended and are in full force and effect.

(xv)    Beneficial Ownership Certificates. (i) The Administrative Agent and the Lenders shall have received, prior to the First Omnibus Amendment Effective Date, all documentation and other information regarding the Borrower and the Guarantors requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower or the Guarantors at least ten (10) days prior to the First Omnibus Amendment Effective Date and (ii) to the extent any of the Borrower or the Guarantors qualify as a “legal entity customer” under the Beneficial Ownership Regulation, prior to the First Omnibus Amendment Effective Date, any Lender that has requested, in a written notice to the Borrower or the Guarantors at least ten (10) days prior to the First Omnibus Amendment Effective Date, a Beneficial Ownership Certification in relation to the Borrower or the Guarantors shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this First Omnibus Amendment, the condition set forth in this clause (ii) shall be deemed to be satisfied).

(xvi)    Legal Opinions. The Administrative Agent shall have received a written opinion in form and substance customary for transactions similar to this transaction (addressed to the Administrative Agent and the Lenders dated the First Omnibus Amendment Effective Date) from (1) Winston & Strawn LLP, New York, California and Delaware counsel for the Loan Parties (2) Snell & Wilmer L.L.P., Colorado counsel for the Loan Parties and (3) Helsell Fetterman LLP, Washington counsel for the Loan Parties.

(xvii)    Additional Equity Interests. Each Grantor shall have taken any and all actions which may reasonably be necessary to pledge all Pledged Collateral (as defined in the Amended Security Agreement), including without limitation, 100% of the Equity Interests of MTN International, Inc., owned by such Grantor, including delivery of stock certificates or other instruments representing all Equity

 

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Interests, together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank, all in form and substance acceptable to the Administrative Agent, the Required Lenders and the New Incremental Term Lenders.

(xviii)    Closing Certificate. A closing certificate of the Borrower in form and substance satisfactory to the Required Lenders and the Administrative Agent certifying (w) as to the matters set forth in Section 6(b) of this Amendment (x) that all conditions precedent to the First Omnibus Amendment Effective Date have been satisfied, (y) that attached thereto are current and complete copies of the Second Lien Amendment and all other agreements executed in connection therewith, and (z)    that the Second Lien Amendment and all other agreements executed in connection therewith have become effective in accordance with their terms.

(xix)    Insurance. Updated certificates of insurance meeting the requirements set forth in the Credit Agreement or in the Collateral Documents or as required by the Administrative Agent, and insurance endorsements naming the Administrative Agent as lenders’ loss payable as its interest may appear, with respect of any such insurance, as applicable.

(xx)    Amendments to IP Security Agreements. (i) Fully-executed counterparts from all parties to the First Amendment to Patent Security Agreement. and (ii) fully-executed counterparts from all parties to the First Amendment to the Trademark Security Agreement.

(b)    Collateral and Guarantee Requirement. The Collateral and Guarantee Requirement shall have been satisfied.

(c)    Fees. The Administrative Agent and the Initial New Incremental Term Lender (as applicable pursuant to Section 2(d) hereof) shall have received (in cash) the Consent Fee, the Citibank Fee and the New Incremental Term Fee and the Administrative Agent, the Initial New Incremental Term Lender, the New Incremental Term Lenders and the New Incremental Term Lender Advisor shall have received payment (in cash) of all documented fees and expenses required to be paid or reimbursed by the Borrower on the First Omnibus Amendment Effective Date including (without duplication) (i) all professional fees and expenses of the New Incremental Term Lender Advisor relating to this First Omnibus Amendment, the Amended Credit Agreement and the transactions related thereto and (ii) all fees and reasonable and documented expenses required to be paid or reimbursed under Section 10.04 of the Amended Credit Agreement (including the fees and expenses of the legal counsel to the Administrative Agent) for which invoices have been presented a reasonable period of time prior to the First Omnibus Amendment Effective Date, shall in each case have been paid or reimbursed.

(d)    Financial Analyses. The Administrative Agent and the New Incremental Term Lenders shall have received such forecasts, budgets and other business and financial analyses as they shall request.

 

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(e)    Diligence. The Lenders (or their agents) shall have completed their legal and business due diligence and are satisfied with the results thereof.

(f)    Representations and Warranties. The representations and warranties in Section 6 of this First Omnibus Amendment and in the other Loan Documents shall be true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on the First Omnibus Amendment Effective Date (or to the extent that such representations and warranties specifically refer to an earlier date, such representations and warranties shall have been true and correct in all material respects as of such earlier date).

(g)    No Default. No Default or Event of Default has occurred and is continuing or would result from the execution, delivery or performance of this First Omnibus Amendment or the borrowing or making of the New Incremental Term Loan.

(h)    No Material Adverse Effect. Since December 31, 2018, no Material Adverse Effect shall have occurred or would result from the execution, delivery or performance of this First Omnibus Amendment or the borrowing or making of the New Incremental Term Loan;

(i)    Other. The Loan Parties shall have provided such other items and shall have satisfied such other conditions as may be reasonably required by the Required Lenders.

(j)    Amortization Holiday Conditions. The Amortization Holiday Conditions shall have been satisfied.

Section 9. Post-Closing Covenant. The Loan Parties, jointly and severally, covenant and agree to satisfy the requirements and/or provide to the Administrative Agent each of the documents, instruments, agreements and information set forth on Schedule 6.23 to the Amended Credit Agreement (each in form and substance satisfactory to the Administrative Agent and the Required Lenders)in their reasonable discretion), as soon as commercially reasonable after the First Omnibus Amendment Effective Date and by no later than the date set forth on Schedule 6.23 to the Amended Credit Agreement with respect to such action (or such later date as the Administrative Agent may reasonably agree).

Section 10. Entire Agreement. This First Omnibus Amendment, the Amended Credit Agreement, the Amended Security 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.

Section 11. GOVERNING LAW. THIS FIRST OMNIBUS AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON OR ARISING OUT OF THIS FIRST OMNIBUS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

-12-


Section 12. Consent to Jurisdiction; Waiver of Jury Trial. The jurisdiction and waiver of jury trial provisions set forth in Sections 10.15 and 10.16 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

Section 13. Consent to Service of Process. Each party to this First Omnibus Amendment irrevocably consents to the service of process in the manner provided for notices in Section 10.02 of the Amended Credit Agreement. Nothing in any Loan Document will affect the right of any party to this First Omnibus Amendment to serve process in any other manner permitted by law.

Section 14. Severability. Any term or provision of this First Omnibus Amendment which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this First Omnibus Amendment or affecting the validity or enforceability of any of the terms or provisions of this First Omnibus Amendment in any other jurisdiction. If any provision of this First Omnibus Amendment is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.

Section 15. Loan Document. This First Omnibus Amendment constitutes a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents.

Section 16. Reaffirmation. Each of the undersigned Loan Parties (i) acknowledges all of its obligations, undertakings and liabilities under the Credit Agreement, the Security Agreement and the other Loan Documents to which it is a party in each case as amended hereby or in connection herewith and such obligations, undertakings and liabilities (as so amended hereby, where applicable, are hereby reaffirmed and remain in full force and effect on a continuous basis, (ii) agrees that its grant of security interests pursuant to the Security Agreement is hereby remade, reaffirmed and remains in full force and effect after giving effect to this First Omnibus Amendment and secures all Secured Obligations (as in effect after giving effect hereto), (iii) acknowledges and agrees that the Secured Obligations, the Obligations and the Guaranteed Obligations include, among other things and without limitation, the due and punctual payment of the principal of, interest on, and premium (if any) on, the New Incremental Term Loans, Revolving Credit Commitments and Revolving Credit Loans, the Term Loans and other Loans and (iv) acknowledges and agrees that the execution of this First Omnibus Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent, the Required Lenders, the New Incremental Term Lenders or the other Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations.

Section 17. Expenses. The Borrower agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and the New Incremental Term Loan Lender Advisor in connection with the negotiation, preparation, execution and delivery of this First Omnibus Amendment, including without limitation, the reasonable and documented fees, costs and expenses of the Administrative Agent and New Incremental Term Lender Advisor, in each case, in the manner set forth in Section 10.04 of the Amended Credit Agreement.

 

-13-


Section 18. Counterparts. This First Omnibus Amendment may be executed by the parties hereto in any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this First Omnibus Amendment by fax, email or other electronic transmission (including in .pdf or .tif format) shall be effective as delivery of a manually executed counterpart of this First Omnibus Amendment.

Section 19. Headings. The headings of this First Omnibus Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

Section 20. Effect of this First Omnibus Amendment. Except as expressly set forth herein, (i) this First Omnibus Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent, in each case under the Credit Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document. Except as expressly set forth herein, each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement or any other Loan Document is hereby ratified and re-affirmed in all respects and shall continue in full force and effect and each Loan Party reaffirms its obligations under the Loan Documents to which it is party and the grant of its Liens on the Collateral made by it pursuant to the Security Documents. The execution, delivery and effectiveness of this First Omnibus Amendment shall not, except as expressly provided herein or as provided in the exhibits hereto, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, or constitute a waiver of any provision of any of the Loan Documents. This First Omnibus Amendment shall not extinguish the obligations for the payment of money outstanding under the Credit Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Credit Agreement, which shall remain in full force and effect, except to any extent modified hereby or as provided in the exhibits hereto. Nothing implied in this First Omnibus Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Loan Parties from the Loan Documents. From and after the First Omnibus Amendment Effective Date, all references to the Credit Agreement or the Security Agreement in any Loan Document and all references in the Credit Agreement or the Security Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement and/or the Security Agreement shall, unless expressly provided otherwise, be deemed to refer to the Amended Credit Agreement and/or the Security Agreement as amended hereby, respectively. Each of the Loan Parties hereby consents to this First Omnibus Amendment and confirms that all obligations of such Loan Party under the Loan Documents to which such Loan Party is a party shall continue to apply to the Credit Agreement as amended hereby.

[Remainder of page left intentionally blank]

 

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

 

GLOBAL EAGLE ENTERTAINMENT INC.,
as Borrower and Grantor
By:  

/s/ Christian Mezger

Name:   Christian Mezger
Title:   Chief Financial Officer

GLOBAL EAGLE SERVICES, LLC

AIRLINE MEDIA PRODUCTIONS, INC.

ENTERTAINMENT IN MOTION, INC.

GLOBAL EAGLE ENTERTAINMENT OPERATIONS SOLUTIONS, INC.

INFLIGHT PRODUCTIONS USA INC.

POST MODERN EDIT, INC.

THE LAB AERO, INC.

ROW 44, INC.

N44HQ, LLC

EMERGING MARKETS COMMUNICATIONS, LLC

MARITIME TELECOMMUNICATIONS NETWORK, INC.

MTN INTERNATIONAL, INC.

MTN GOVERNMENT SERVICES, INC.

MTN LICENSE CORP.

GLOBAL EAGLE TELECOM LICENSING SUBSIDIARY LLC

IFE SERVICES (USA), INC.,

each as a Guarantor and a Grantor

 

By:  

/s/ Christian Mezger

Name:   Christian Mezger
Title:   Chief Financial Officer

[Signature Page to First Omnibus Amendment]


CITIBANK, N.A., as Administrative Agent,

L/C Issuer, Swing Line Lender, Lender and as Initial New

Incremental Term Lender

By:  

/s/ Michael Moore

Name:   Michael Moore
Title:   Director & Vice President

[Signature Page to Omnibus Amendment]


AMMC CLO 16, LIMITED, as Term Lender

By: American Money Management Corp.,

as Collateral Manager

By:  

/s/ David P. Meyer

Name:   David P. Meyer
Title:   Senior Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


AMMC CLO 18, LIMITED, as Term Lender

By: American Money Management Corp.,

as Collateral Manager

By:  

/s/ David Meyer

Name:   David Meyer
Title:   Senior Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


AMMC CLO 19, LIMITED, as Term Lender

By: American Money Management Corp.,

as Collateral Manager

By:  

/s/ David Meyer

Name:   David Meyer
Title:   Senior Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


AMMC CLO 20, LIMITED, as Term Lender

By: American Money Management Corp.,

as Collateral Manager

By:  

/s/ David Meyer

Name:   David Meyer
Title:   Senior Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


AMMC CLO 22, LIMITED, as Term Lender

By: American Money Management Corp.,

as Collateral Manager

By:  

/s/ David Meyer

Name:   David Meyer
Title:   Senior Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


AMMC CLO XIII, LIMITED, as Term Lender

By: American Money Management Corp., as Collateral Manager

By:  

/s/ David P. Meyer

Name:   David P. Meyer
Title:   Senior Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


AMMC CLO XIV, LIMITED, as Term Lender
By:  

/s/ David P. Meyer

Name:   David P. Meyer
Title:   Senior Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM V, Ltd., as Term Lender

By: Apollo Credit Management (CLO), LLC, as

Collateral Manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM VI, Ltd., as Term Lender

By: Apollo Credit Management (CLO), LLC, as

Collateral Manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM VII (R), Ltd., as Term Lender

By: Apollo Credit Management (CLO), LLC,

as Collateral Manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM VII (R)-2, Ltd., as Term Lender

By: Apollo Credit Management (CLO), LLC,

as Collateral Manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM VII, Ltd., as Term Lender

BY: Apollo Credit Management (CLO), LLC,

as Collateral Manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM VIII, Ltd., as Term Lender

BY: Apollo Credit Management (CLO), LLC, as

Collateral Manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM XII, Ltd., as Term Lender

By: Apollo Credit Management (CLO), LLC,

as Collateral Manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM XIX, LTD., as Term Lender

by Apollo Credit Management (CLO), LLC,

as its collateral manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM XVI, LTD., as Term Lender

by Apollo Credit Management (CLO), LLC,

as its collateral manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM XVII, Ltd., as Term Lender

by Apollo Credit Management (CLO), LLC, as its

collateral manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ALM XVIII, LTD., as Term Lender

by Apollo Credit Management (CLO), LLC,

as its collateral manager

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Apollo Credit Funding III Ltd., as Term Lender

By: Apollo ST Fund Management LLC, its investment

manager

By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Apollo Credit Funding IV Ltd., as Term Lender

By Apollo ST Fund Management, LLC,

as its collateral manager

By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Apollo Credit Funding V Ltd., as Term Lender

By Apollo ST Fund Management LLC, as its collateral

manager

By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Apollo Credit Funding VI Ltd., as Term Lender

By: Apollo ST Fund Management LLC, as its collateral

manager

By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Apollo CREDIT MASTER FUND LTD., as Term

Lender

By: Apollo ST Fund Management LLC,

as its Collateral Manager

By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Apollo Senior Floating Rate Fund Inc., as Term Lender

BY: Account 631203

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Authorized Signatory
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Apollo Tactical Income Fund Inc, as Term Lender

BY: Account 361722

By:  

/s/ Connie Yen

Name:   Connie Yen
Title:   Authorized Signatory
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Apollo TR US Broadly Syndicated Loan LLC, as Term Lender
By: Apollo Total Return Master Fund LP, its Member
By: Apollo Total Return Advisors LP, its General Partner
By: Apollo Total Return Advisors GP LLC, its General Partner
By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Cadbury Mondelez Pension Trust Limited, as Term

Lender

By: Apollo TRF CM Management, LLC, its investment manager
By: Apollo Capital Management, L.P., its member
By: Apollo Capital Management GP, LLC, its general partner
By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Diversified Loan Fund - Syndicated Loan A S.a.r.l.,

as Term Lender

By: Apollo Management International LLP, its portfolio manager
By: AMI (Holdings), LLC, its member
By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


MPI (London) Limited, as Term Lender
By: Apollo TRF MP Management, LLC, its sub-advisor
By: Apollo Capital Management, L.P., its sole member
By: Apollo Capital Management GP, LLC, its general partner
By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


RR2 Ltd., as Term Lender

by Redding Ridge LLC

as its collateral manage

By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


RR 3 Ltd., as Term Lender

BY: Apollo Credit Management (CLO), LLC, as its

collateral manager

By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


RR1 LTD., as Term Lender

BY: Apollo Credit Management (CLO), LLC, as its

collateral manager

By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


RR4 LTD., as Term Lender
By:  

/s/ Lacary Sharpe

Name:   Lacary Sharpe
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Barclays Bank PLC, as Term Lender
By:  

/s/ Jacqueline Custodio

Name:   Jacqueline Custodio
Title:   Authorized Signatory

[Signature Page to First Omnibus Amendment]


BlackRock Credit Alpha Master Fund L.P. as a Lender

BY: BlackRock Financial Management Inc., in its capacity as investment advisor

By:  

/s/ Rob Jacobi

Name:   Rob Jacobi
Title:   Authorized Signatory
For any Lender requiring a second signature line:
By:  

 

Name:  
Title:  


Carlyle US CLO 2017-5 Ltd, as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


HC NCBR Fund, as Term Lender

BlackRock Financial Management, Inc., in its capacity as investment advisor

By:  

/s/ Rob Jacobi

Name:   Rob Jacobi
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  


The Obsidian Master Fund as a Lender

BY: BlackRock Financial Management, Inc., its Investment Advisor

By:  

/s/ Rob Jacobi

Name:   Rob Jacobi
Title:   Authorized Signatory
For any Lender requiring a second signature line:
By:  

 

Name:  
Title:  


Carlyle Global Market Strategies CLO 2012-3, Ltd., as

Term Lender

By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2012-4, Ltd., as

Term Lender

By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2013-1, Ltd., as

Term Lender

By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2013-4, Ltd., as

Term Lender

By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2014-1, Ltd., as

Term Lender

By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2014-2-R, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2014-3-R, Ltd., as Term Lender

By:

 

/s/ Linda Pace

Name:

  Linda Pace

Title:

  Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2014-4-R, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2014-5, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2015-1, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2015-2, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2015-3, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2015-4, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2015-5, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2016-1, Ltd., as Term Lender

By:

 

/s/ Linda Pace

Name:

  Linda Pace

Title:

  Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2016-3, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Carlyle US CLO 2016-4, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle Global Market Strategies CLO 2016-2 Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle US CLO 2017-1, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle US CLO 2017-2, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle US CLO 2017-3 Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Carlyle US CLO 2017-4, Ltd., as Term Lender
By:  

/s/ Linda Pace

Name:   Linda Pace
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


AGF Floating Rate Income Fund

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Brighthouse Funds Trust I –

Brighthouse/Eaton Vance Floating Rate Portfolio

By: Eaton Vance Management as Investment Sub-Advisor
                    , as Term Lender
By:  

/s/ Michael B. Botthof

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance CLO 2014-1R, Ltd.

By: Eaton Vance Management

As Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance CLO 2015-1 Ltd.
By: Eaton Vance Management
Portfolio Manager
                    , as Term Lender
By:  

/s/ Michael B. Botthof                                             

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance CLO 2013-1 LTD

By: Eaton Vance Management

as Portfolio Manager

                    , as Term Lender
By:  

/s/ Michael B. Botthof                                             

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance CLO 2019-1, Ltd.

By: Eaton Vance Management

As Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof                                             

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance CLO 2018-1, Ltd.

By: Eaton Vance Management

Portfolio Manager

                    , as Term Lender
By:  

/s/ Michael B. Botthof                                             

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance Floating-Rate

Income Plus Fund

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof                                             

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance Floating-Rate

2022 Target Term Trust

By: Eaton Vance Management

as Investment Advisor

                     , as Term Lender

By:  

/s/ Michael B. Botthof                                                 

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance Floating-Rate Income Trust

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof                                         

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance Senior Floating-Rate Trust

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof                                         

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance International (Cayman Islands)

Floating-Rate Income Portfolio

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof                                         

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance Senior Income Trust

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof                                         

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance Short Duration

Diversified Income Fund

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof                                         

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment


Eaton Vance Institutional Senior Loan Fund

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance Limited Duration Income Fund

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Eaton Vance Floating Rate Portfolio

By: Boston Management and Research

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof

Name:   Michael B. Botthof
Title:   Vice President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Florida Power & Light Company

By: Eaton Vance Management

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof

Name:   Michael B. Botthof
Title:   Vice President

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Senior Debt Portfolio

By: Boston Management and Research

as Investment Advisor

                    , as Term Lender
By:  

/s/ Michael B. Botthof

Name:   Michael B. Botthof
Title:   Vice President

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


EATON VANCE

VT FLOATING-RATE INCOME FUND

BY: EATON VANCE MANAGEMENT

AS INVESTMENT ADVISOR

                    , as Term Lender
By:  

/s/ Michael B. Botthof

Name:   Michael B. Botthof
Title:   Vice President

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


OCEAN TRAILS CLO IV
BY:  

Five Arrows Managers North America LLC,

as Asset Manager

BY:  

/s/ RYAN J. WHITE

Name:   RYAN J. WHITE
Title:   DIRECTOR
OCEAN TRAILS CLO V
BY:  

Five Arrows Managers North America LLC,

as Asset Manager

BY:  

/s/ RYAN J. WHITE

Name:   RYAN J. WHITE
Title:   DIRECTOR
OCEAN TRAILS CLO VI
BY:  

Five Arrows Managers North America LLC,

as Asset Manager

BY:  

/s/ RYAN J. WHITE

Name:   RYAN J. WHITE
Title:   DIRECTOR


Franklin Custodian Funds – Franklin Income Fund, as Term Lender
By:  

/s/ Richard Hsu

Name:   Richard Hsu
Title:   Vice President, Franklin Advisers

[Signature Page to First Omnibus Amendment]


Hayfin Kingsland IX, Ltd., as Term Lender
By: Hayfin Capital Management LLC as Manager
By:  

/s/ Katherine Kim

Name:   Katherine Kim
Title:   Authorized Signatory
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Hayfin Kingsland VIII, Ltd., as Term Lender
By:  

/s/ Katherine Kim

Name:   Katherine Kim
Title:   Authorized Signatory
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


J.H. Lane Partners Master Fund, LP, as Term Lender
By:  

/s/ Haskel Ginsberg

Name:   Haskel Ginsberg
Title:   CFO
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Venture 28A CLO, Limited, as Term Lender
By: its investment advisor
MJX Venture Management II LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


VENTURE XII CLO, Limited, as Term Lender
BY: its investment advisor
MJX Venture Management LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


VENTURE XIII CLO, Limited, as Term Lender
By: its investment advisor
MJX Venture Management LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


VENTURE XIV CLO, Limited, as Term Lender
By: its investment advisor
MJX Venture Management LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


VENTURE XIX CLO, Limited, as Term Lender
By: its investment advisor
MJX Asset Management LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


VENTURE XV CLO, Limited, as Term Lender
By: its investment advisor
MJX Asset Management LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


VENTURE XVI CLO, Limited, as Term Lender
By: its investment advisor
  MJX Venture Management II LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Venture XVIII CLO, Limited, as Term Lender
By: its investment advisor
MJX Venture Management II LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


VENTURE XX CLO, Limited, as Term Lender
By: its investment advisor
  MJX Venture Management LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director

 

For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Venture XXI CLO, Limited, as Term Lender
By: its investment advisor
MJX Venture Management LLC

By:

 

/s/ Michael Regan

Name:

  Michael Regan

Title:

  Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Venture XXIII CLO, Limited, as Term Lender
By: its investment advisor
MJX Asset Management LLC

By:

 

/s/ Michael Regan

Name:

  Michael Regan

Title:

  Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Venture XXIV CLO, Limited, as Term Lender
By: its investment advisor
MJX Asset Management LLC

By:

 

/s/ Michael Regan

Name:

  Michael Regan

Title:

  Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Venture 37 CLO, Limited, as Term Lender

By:

 

/s/ Michael Regan

Name:

  Michael Regan

Title:

  Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Venture 36 CLO, Limited, as Term Lender
By: its investment advisor
MJX Asset Management LLC

By:

 

/s/ Michael Regan

Name:

  Michael Regan

Title:

  Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Venture XVII CLO Limited, as Term Lender
BY: its investment advisor,
MJX Asset Management, LLC

By:

 

/s/ Michael Regan

Name:

  Michael Regan

Title:

  Managing Director

For any Term Lender requiring a second signature line:

By:

 

 

Name:

 

Title:

 

[Signature Page to First Omnibus Amendment]


Venture XXII CLO, Limited, as Term Lender
By: its investment advisor
MJX Venture Management II LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Venture XXIX CLO, Limited, as Term Lender
By: its investment advisor
MJX Venture Management II LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Venture XXVI CLO, Limited, as Term Lender
By: its investment advisor
MJX Venture Management LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


VENTURE XXV CLO, LIMITED, as Term Lender
By its Investment Advisor,
MJX Asset Management LLC
By:  

/s/ Michael Regan

Name:   Michael Regan
Title:   Managing Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Monroe Capital CLO 2014-1, Ltd.
By: Monroe Capital Management LLC, as Collateral Manager and Attorney-in Fact
By:  

/s/ Jeffrey Williams

Name:   Jeffrey Williams
Title:   Managing Director
Monroe Capital MML CLO 2016-1, Ltd.
By: Monroe Capital Management LLC, as Collateral Manager and Attorney-in Fact
By:  

/s/ Jeffrey Williams

Name:   Jeffrey Williams
Title:   Managing Director

[Signature Page to First Omnibus Amendment]


MainStay Floating Rate Fund,
a series of MainStay Funds Trust
By: NYL Investors, LLC, its Subadvisor
                    , as Term Lender
By:  

/s/ Michelle Lim

Name:   Michelle Lim
Title:   Sr. Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


MainStay VP Floating Rate Portfolio,
a series of MainStay VP Funds Trust
By: NYL Investors, LLC, its Subadvisor
                    , as Term Lender
By:  

/s/ Michelle Lim

Name:   Michelle Lim
Title:   Sr. Director
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


American Beacon Sound Point Floating Rate Income Fund, a series of American Beacon Funds, as Term Lender
By: Sound Point Capital Management, LP as Sub-Advisor
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Kaiser Foundation Hospitals, as Term Lender
By: Sound Point Capital Management, LP as Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Kaiser Permanente Group Trust, as Term Lender
By: Sound Point Capital Management, LP as Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Privilege Underwriters Reciprocal Exchange, as Term Lender
By: Sound Point Capital Management, LP as Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


PURE Insurance Company, as Term Lender
By: Sound Point Capital Management, LP as Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO III-R, Ltd., as Term Lender
BY: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO IV-R, Ltd., as Term Lender
BY: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO IX, Ltd., as Term Lender
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO VIII-R, Ltd., as Term Lender
BY: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO VII-R, Ltd., as Term Lender
BY: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO VI-R, Ltd., as Term Lender
BY: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO V-R, Ltd., as Term Lender
BY: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO X, Ltd., as Term Lender
By: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]

 



Sound Point CLO XI, Ltd., as Term Lender
By: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO XII, Ltd., as Term Lender
By: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO XIV, Ltd., as Term Lender
By: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point CLO XV, Ltd., as Term Lender
By: Sound Point Capital Management, LP as Collateral Manager
By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Sound Point Senior Floating Rate Master Fund, L.P., as Term Lender

BY: Sound Point Capital Management, LP as

Investment Advisor

By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


Teamsters Pension Trust Fund of Philadelphia &

Vicinity, as Term Lender

BY: Sound Point Capital Management, LP as

Investment Advisor

By:  

/s/ Alvin Mai

Name:   Alvin Mai
Title:   Operations Associate
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


VC4 Debt Investments (U.S.), L.L.C.
            , as Term Lender
By:  

/s/ James Murray

Name:   James Murray
Title:   Authorized Signatory
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


[Consent], as Term Lender
By:  

/s/ Rajay Bagaria

Name:   Rajay Bagaria
Title:   CIO, President
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  
Wasserstein Consenting Funds:
Wasserstein Debt
Opportunities Master, LP
Vanderbilt university
Webster Falls funding ULC
(The consent will be provided by Scotiabank shortly)

[Signature Page to First Omnibus Amendment]


WEBSTER FALLS FUNDING ULC, as Term Lender
By:  

/s/ Mobasharul Islam

Name:   Mobasharul Islam
Title:   Authorized Signatory
For any Term Lender requiring a second signature line:
By:  

 

Name:  
Title:  

[Signature Page to First Omnibus Amendment]


ANNEX I

AMENDED CREDIT AGREEMENT

[See attached]


Conformed to :Final Version

First  Amendment and  Limited Waiver  (May  4, 2017)

Second  Amendment (June 29, 2017)

Third  Amendment (October 2, 2017)

Fourth  Amendment (October 31, 2017)

Fifth  Amendment (December  22, 2017)

Sixth  Amendment (March 8, 2018)

ANNEX I

$585,000,000

CREDIT AGREEMENT

Dated as of January 6, 2017

among

GLOBAL EAGLE ENTERTAINMENT INC.,

as the Borrower,

THE GUARANTORS PARTY HERETO FROM TIME TO TIME,

CITIBANK, N.A.,

as Administrative Agent,

CITIBANK, N.A.,

as L/C Issuer,

CITIBANK, N.A.,

as Swing Line Lender

and

THE OTHER LENDERS PARTY HERETO FROM TIME TO TIME

and

CITIGROUP GLOBAL MARKETS INC.,

MACQUARIE CAPITAL (USA) INC.,

BARCLAYS BANK PLC,

As amended by (i) the First Am endm ent and Lim ited Waiver to Cre dit Agreem ent dated as of May 4, 2017, (ii) the Am endm ent to First Amendment and Limited Waiver to Credit Agreement and Second Amendment to Credit Agreement dated as of June 29, 2017, (iii) the Third Amendment to Limited Waiver to Credit Agreement and Third Amendment to Credit Agreement dated as of October 2, 2017, (iv) the Fourth Amendment to Limited Waiver to Credit Agreement and Fourth Amendment to Credit Agreement dated as of October 31, 2017, (v) the Fifth Amendment to Limited Waiver to Credit Agreement and Fifth Amendment to Credit Agreement dated as of December 22, 2017, (vi) the Sixth Amendment to Credit Agreement dated as of March 8, 2018 and (vii) the Omnibus Incremental Term Loan and Seventh Amendment to Credit Agreement and Amendment to Security Agreement dated as of July 19, 2019.


CITIZENS BANK, NATIONAL ASSOCIATION

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and TD SECURITIES (USA) LLC,

as Joint Lead Arrangers and Joint Bookrunning Managers

 

- 2 -


TABLE OF CONTENTS

 

            Page  

ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS

     1  

SECTION 1.01

     Defined Terms      1  

SECTION 1.02

     Other Interpretive Provisions      7587  

SECTION 1.03

     Accounting Terms      7688  

SECTION 1.04

     Rounding      7789  

SECTION 1.05

     References to Agreements, Laws, Etc.      7789  

SECTION 1.06

     Times of Day      7789  

SECTION 1.07

     Timing of Payment or Performance      7789  

SECTION 1.08

     Cumulative Credit Transactions 77[Reserved]      89  

SECTION 1.09

     Pro Forma Calculations      7889  

SECTION 1.10

     Currency Generally      7991  

SECTION 1.11

     Certifications      8092  

SECTION 1.12

     Limited Condition Acquisition      8092  

SECTION 1.13

     The Exchange Rate      8193  

ARTICLE 2 THE COMMITMENTS AND CREDIT EXTENSIONS

     8193  

SECTION 2.01

     The Loans.      8193  

SECTION 2.02

     Borrowings, Conversions and Continuations of Loans      8294  

SECTION 2.03

     Letters of Credit      8497  

SECTION 2.04

     Swing Line Loans      95108  

SECTION 2.05

     Prepayments      98111  

SECTION 2.06

     Termination or Reduction of Commitments      112125  

SECTION 2.07

     Repayment of Loans      113126  

SECTION 2.08

     Interest      113127  

SECTION 2.09

     Fees      114128  

SECTION 2.10

     Computation of Interest and Fees      115129  

SECTION 2.11

     Evidence of Indebtedness      115129  

SECTION 2.12

     Payments Generally      116130  

SECTION 2.13

     Sharing of Payments      118132  

SECTION 2.14

     Incremental Credit Extensions      120134  

SECTION 2.15

     Refinancing Amendments      127141  

 

- i -


TABLE OF CONTENTS (Cont.)

 

            Page  

SECTION 2.16

     Extension of Term Loans; Extension of Revolving Credit Loans      128143  

SECTION 2.17

     Defaulting Lenders      130145  

SECTION 2.18

     Permitted Debt Exchanges      132147  

ARTICLE 3 TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

     134149  

SECTION 3.01

     Taxes      134149  

SECTION 3.02

     Illegality      137152  

SECTION 3.03

     Inability to Determine Rates      138153  

SECTION 3.04

     Increased Cost and Reduced Return; Capital Adequacy; Eurocurrency Rate Loan Reserves; EURIBOR Reserves      138154  

SECTION 3.05

     Funding Losses      141156  

SECTION 3.06

     Matters Applicable to All Requests for Compensation      141157  

SECTION 3.07

     Replacement of Lenders under Certain Circumstances      142158  

SECTION 3.08

     Survival      144160  

ARTICLE 4 CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

     144160  

SECTION 4.01

     Conditions to Initial Credit Extension      144160  

SECTION 4.02

     Conditions to All Credit Extensions      146162  

ARTICLE 5 REPRESENTATIONS AND WARRANTIES

     147163  

SECTION 5.01

     Existence, Qualification and Power; Compliance with Laws      147163  

SECTION 5.02

     Authorization; No Contravention      147163  

SECTION 5.03

     Governmental Authorization; Other Consents      148164  

SECTION 5.04

     Binding Effect      148164  

SECTION 5.05

     Financial Statements; No Material Adverse Effect      148164  

SECTION 5.06

     Litigation      149165  

SECTION 5.07

     Ownership of Property; Liens      149165  

SECTION 5.08

     Environmental Matters      149165  

SECTION 5.09

     Taxes      150166  

SECTION 5.10

     ERISA Compliance      150166  

SECTION 5.11

     Subsidiaries; Equity Interests      151167  

 

-ii-


TABLE OF CONTENTS (Cont.)

 

            Page  

SECTION 5.12

     Margin Regulations; Investment Company Act      151167  

SECTION 5.13

     Disclosure      151167  

SECTION 5.14

     Labor Matters      152168  

SECTION 5.15

     Intellectual Property; Licenses, Etc      152168  

SECTION 5.16

     Solvency      152168  

SECTION 5.17

     FCC Authorizations      152168  

SECTION 5.18

     USA Patriot Act; OFAC; FCPA      153169  

SECTION 5.19

     Security Documents      153169  

SECTION 5.20

     EEA Financial Institutions      154170  

ARTICLE 6 AFFIRMATIVE COVENANTS

     154170  

SECTION 6.01

     Financial Statements      154170  

SECTION 6.02

     Certificates; Other Information      157174  

SECTION 6.03

     Notices      158175  

SECTION 6.04

     Payment of Taxes      158176  

SECTION 6.05

     Preservation of Existence, Etc.      176  

SECTION 6.06

     Maintenance of Properties      159176  

SECTION 6.07

     Maintenance of Insurance      159176  

SECTION 6.08

     Compliance with Laws      177  

SECTION 6.09

     Books and Records      177  

SECTION 6.10

     Inspection Rights      160177  

SECTION 6.11

     Additional Collateral; Additional Guarantors      160178  

SECTION 6.12

     Compliance with Environmental Laws      162180  

SECTION 6.13

     Further Assurances      163180  

SECTION 6.14

     Designation of Subsidiaries      163181  

SECTION 6.15

     Maintenance of Ratings      181  

SECTION 6.16

     Use of Proceeds      164181  

SECTION 6.17

     Lender Meetings      164182  

SECTION 6.18

     End of Fiscal Years      164182  

SECTION 6.19

     Lines of Business      164182  

SECTION 6.20

     Communications Regulations      182  

SECTION 6.21

     Anti-Terrorism Law; Anti-Money Laundering; Embargoed Persons; Anti-Corruption; Licenses      183  

 

-iii-


TABLE OF CONTENTS (Cont.)

 

            Page  

SECTION 6.22

     ERISA Compliance      165183  

SECTION 6.23

     Post-Closing Matters      165183  

ARTICLE 7 NEGATIVE COVENANTS

     183  

SECTION 7.01

     Liens      184  

SECTION 7.02

     Investments      189  

SECTION 7.03

     Indebtedness      174194  

SECTION 7.04

     Fundamental Changes      180200  

SECTION 7.05

     Dispositions      182202  

SECTION 7.06

     Restricted Payments      185205  

SECTION 7.07

     [Reserved]      187208  

SECTION 7.08

     Transactions with Affiliates      188208  

SECTION 7.09

     Burdensome Agreements      189210  

SECTION 7.10

     [Reserved]      191212  

SECTION 7.11

     Consolidated First Lien Net Leverage Ratio      191212  

SECTION 7.12

     [Reserved].      191213  

SECTION 7.13

     Prepayments, Etc. of Subordinated Indebtedness, Qualified Debt or Convertible Notes.      191213  

SECTION 7.14

     Permitted JV Holdings Activities      214  

ARTICLE 8 EVENTS OF DEFAULT AND REMEDIES

     193215  

SECTION 8.01

     Events of Default      193215  

SECTION 8.02

     Remedies Upon Event of Default      195218  

SECTION 8.03

     Application of Funds      196218  

SECTION 8.04

     Borrower’s Right to Cure      197219  

ARTICLE 9 ADMINISTRATIVE AGENT AND OTHER AGENTS

     198220  

SECTION 9.01

     Appointment and Authority      198220  

SECTION 9.02

     Rights as a Lender      199221  

SECTION 9.03

     Exculpatory Provisions      199221  

SECTION 9.04

     Reliance by Administrative Agent      200222  

SECTION 9.05

     Delegation of Duties      201223  

SECTION 9.06

     Resignation of Administrative Agent      201223  

SECTION 9.07

     Non-Reliance on Administrative Agent and Other Lenders      202224  

 

-iv-


TABLE OF CONTENTS (Cont.)

 

            Page  

SECTION 9.08

     No Other Duties, Etc      202224  

SECTION 9.09

     Administrative Agent May File Proofs of Claim      203225  

SECTION 9.10

     Collateral and Guaranty Matters      203225  

SECTION 9.11

     Secured Treasury Services Agreements and Secured Hedge Agreements      205227  

SECTION 9.12

     Withholding Tax Indemnity      205227  

ARTICLE 10 MISCELLANEOUS

     206228  

SECTION 10.01

     Amendments, Etc      206228  

SECTION 10.02

     Notices and Other Communications; Facsimile Copies      209231  

SECTION 10.03

     No Waiver; Cumulative Remedies      211233  

SECTION 10.04

     Attorney Costs and Expenses      212234  

SECTION 10.05

     Indemnification by the Borrower      212235  

SECTION 10.06

     Payments Set Aside      214237  

SECTION 10.07

     Successors and Assigns      215237  

SECTION 10.08

     Confidentiality      222245  

SECTION 10.09

     Setoff      223246  

SECTION 10.10

     Interest Rate Limitation      224246  

SECTION 10.11

     Counterparts      224247  

SECTION 10.12

     Integration      225247  

SECTION 10.13

     Survival of Representations and Warranties      225247  

SECTION 10.14

     Severability      225247  

SECTION 10.15

     GOVERNING LAW      225248  

SECTION 10.16

     WAIVER OF RIGHT TO TRIAL BY JURY      226248  

SECTION 10.17

     Binding Effect      226249  

SECTION 10.18

     USA Patriot Act      227249  

SECTION 10.19

     No Advisory or Fiduciary Responsibility      227249  

SECTION 10.20

     Intercreditor Agreements      228250  

SECTION 10.21

     Judgment Currency      228250  

SECTION 10.22

     Acknowledgement and Consent to Bail-in of EEA Financial Institutions      228251  

ARTICLE 11 GUARANTEE

     229251  

SECTION 11.01

     The Guarantee      229251  

 

-v-


TABLE OF CONTENTS (Cont.)

          Page  

SECTION 11.02

   Obligations Unconditional      230252  

SECTION 11.03

   Reinstatement      231253  

SECTION 11.04

   Subrogation; Subordination      231253  

SECTION 11.05

   Remedies      231254  

SECTION 11.06

   [Reserved]      231254  

SECTION 11.07

   Continuing Guarantee      231254  

SECTION 11.08

   General Limitation on Guarantee Obligations      232254  

SECTION 11.09

   Release of Guarantors      232254  

SECTION 11.10

   Right of Contribution      233255  

SECTION 11.11

   Keepwell      233255  

SECTION 11.12

   Independent Obligation      233256  

SCHEDULES

 

1.01(A)      Existing Letters of Credit
1.01(B)      Guarantors
2.01(a)      Initial Term Commitments and Revolving Credit Commitments
2.01(c)      New Incremental Term Commitments
4.01(a)      Collateral Documents
5.07      Ownership of Property
5.11      Subsidiaries
5.18(d)      Licensed Activities
6.23      Post-Closing Matters
7.01(b)      Liens
7.02(f)      Investments
7.03(b)      Indebtedness
7.05(v)      Dispositions
7.08(h)      Transactions with Affiliates
7.09(b)      Burdensome Agreements
10.02(a)      Administrative Agent’s Office, Certain Addresses for Notices
EXHIBITS
     Form of
A      Committed Loan Notice
B      Swing Line Loan Notice
C-1      Term Note
C-2      Revolving Credit Note
C-3      Swing Line Note
D-1      Compliance Certificate
D-2      Solvency Certificate
E-1      Assignment and Assumption
E-2      [Reserved]

 

-vi-


TABLE OF CONTENTS (Cont.)

 

            Page
E-3      Acceptance and Prepayment Notice                
E-4      Discount Range Prepayment Notice   
E-5      Discount Range Prepayment Offer   
E-6      Solicited Discounted Prepayment Notice   
E-7      Solicited Discounted Prepayment Offer   
E-8      Specified Discount Prepayment Notice   
E-9      Specified Discount Prepayment Response   
F      Security Agreement   
G      United States Tax Compliance Certificate   
H      [Reserved]   
I      Letter of Credit Application   
J      Joinder Agreement   

 

-vii-


CREDIT AGREEMENT

This CREDIT AGREEMENT is entered into as of January 6, 2017, among GLOBAL EAGLE ENTERTAINMENT INC., a Delaware corporation (the Borro wer or the “Company”), the Guarantors party hereto from time to time, CITIBANK, N.A., as Administrative Agent, each lender from time to time party hereto (collectively, the “Lenders” and, individually, a “Lender”), CITIBANK, N.A., as L/C Issuer, and CITIBANK, N.A., as Swing Line Lender.

PRELIMINARY STATEMENTS

The Borrower (as this and other capitalized terms used in these preliminary statements are defined in Section 1.01 below) has requested that the Lenders extend credit to the Borrower in the form of Initial Term Loans and the Initial Revolving Credit Borrowing on the Closing Date. The proceeds of the Loans and other Credit Extensions hereunder shall be used as described in Section 6.16 hereof.

The applicable Lenders have indicated their willingness to lend and each L/C Issuer has indicated its willingness to issue Letters of Credit, in each case, on the terms and subject to the conditions set forth herein.

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

ARTICLE 1

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01    Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

2016 Annual Financial Statement Delivery Date” means the first date on which the Borrower shall deliver (or cause to be delivered) in accordance with the terms of this Agreement the consolidated financial statements for the fiscal year ended December 31, 2016, together with the related report and opinion and other items required by Section 6.01(a) and the Compliance Certificate relating thereto required by Section 6.02(a).1

2017 Quarterly Financial Statement Requirement” shall mean that the Borrower shall have delivered to the Administrative Agent by January 31, 2018 the Company sBorrower s financial statements for each of the fiscal quarters ended March 31, 2017, June 30, 2017 and September 30, 2017, in each case, together with the related items required by Section 6.01(b) of the Credit Agreement and the Compliance Certificate relating thereto required by Section 6.02(a) of the Credit Agreement.2

Acceptable Discount” has the meaning set forth in Section 2.05(a)(v)(D)(2).

 

 

1 First A mendm ent

2 Fifth Amendment


Acceptable Prepayment Amount” has the meaning set forth in Section 2.05(a)(v)(D)(3).

Acceptance and Prepayment Notice” means a notice of the Borrower’s acceptance of the Acceptable Discount in substantially the form of Exhibit E-3.

Acceptance Date” has the meaning set forth in Section 2.05(a)(v)(D)(2).

Accretive” means, with respect to any acquisition of any Person, entity or line of business (a “Target”), the Borrower has reasonably determined that based on its analysis of the Target’s financial performance and business and applying an equivalent methodology of accounting analysis as used for calculating its Reported EBITDA hereunder to the Target, (i) Target’s Reported EBITDA (as calculated on a stand-alone basis as applied as if the Target was the sole Loan Party), (x) for the twelve months immediately preceding such proposed acquisition, was greater than zero and (y) for the twelve months immediately following such acquisition, taking into account any and all assumed or incurred liabilities or Indebtedness in connection with such acquisition, is not projected to result in a reduction of the Borrower’s Reported EBITDA or Reported Adjusted EBITDA for such period and (ii) the Consolidated First Lien Net Leverage Ratio on a Pro Forma Basis as determined in accordance with Section 1.09 after giving effect to such transaction, shall be, as of the last day of the most recently ended Test Period and shall be projected at all times for a twelve month period after such acquisition to be, less than the Consolidated First Lien Net Leverage Ratio immediately prior to giving effect to such transaction.

Actioned Costs Savings has the meaning set forth in the definition of “Consolidated EBITDA.”

Additional Lender” has the meaning set forth in Section 2.14(c).

Additional Refinancing Lender” means, at any time, any bank, financial institution or other institutional lender or investor (other than any such bank, financial institution or other institutional lender or investor that is a Lender at such time) that agrees to provide any portion of Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.15; provided that each Additional Refinancing Lender shall be subject to the approval of (i) (A) in the case of Refinancing Term Loans, the Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed, to the extent that each such Additional Refinancing Lender is not then an existing Lender, an Affiliate of a then existing Lender or an Approved Fund or (B) in the case of Refinancing Revolving Credit Commitments, the Administrative Agent, the Swing Line Lender and any L/C Issuer that has issued Letters of Credit with respect to which such Additional Refinancing Lender will obtain a participation obligation, in each case, such approval not to be unreasonably withheld, conditioned or delayed, to the extent that each such Additional Refinancing Lender is not then an existing Revolving Credit Lender, an Affiliate of a then existing Revolving Credit Lender or an Approved Fund and (ii) the Borrower.

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

 

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Administrative Agent’s Office” means the Administrative Agent’s address and account as set forth on Schedule 10.02(a), or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

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

Advisors” has the meaning set forth in Section 10.08.

Affected Class” has the meaning set forth in Section 3.07(a).

Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

Agent Parties” has the meaning set forth in Section 10.02(b).

Agent-Related Persons” means the Agents, together with their respective Affiliates, officers, directors, employees, partners, agents, advisors and other representatives.

Agents” means, collectively, the Administrative Agent, the Arrangers and the Bookrunners.

Aggregate Commitments” means the Commitments of all the Lenders.

Agreement” means this Credit Agreement, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Amendment No. 1” shall mean that First Amendment and Limited Waiver to Credit Agreement, dated as of May     4, 2017, among the CompanyBorrower, the Guarantors identified on the signature pages thereto, the Lenders party thereto, and the Administrative Agent.3

Amendment No. 1 Effective Date” shall mean the Effective Date, as defined in Amendment No. 1.4

Amendment No. 1 Trigger Date shall mean t he first date on which the Company has delivered to the Administrative Agent a Compliance Certificate pursuant to Section 6.02(a) demonstrating that the Consolidated Total Net Leverage Ratio is less than or equal to 3.50:1.00.5

 

 

3 First Amendment

4 First Amendment

5 First Amendment

 

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Amendment No. 34” shall mean the ThirdFourth Amendment to Limited Waiver to Credit Agreement and ThirdFourth Amendment to Credit Agreement, dated as of October [2]31 , 2017, among the CompanyBorrower, the Guarantors identified on the signature pages thereto, the Lenders party thereto, and the Administrative Agent.6

Amendment No.     34 Effective Date” shall mean the “ThirdFourth Amendment Effective Date”, as defined in Amendment No. 34. 7

Amortization Holiday Conditions” means (i) the Term Lenders holding at least 90% of the outstanding Term Loans as calculated immediately prior to giving effect to the First Omnibus Amendment shall have executed the First Omnibus Amendment and be bound by Section 3(d) thereunder and (ii) the holders of the Second Lien Notes shall have entered into the Second Lien Amendment and Consent providing, among other things, that the interest payable under the Second Lien Notes shall cease to be payable in cash and shall thereafter only be payable in kind until the repayment in full of the Obligations in cash and termination of the Loan Documents.

Amortization Holiday Loans” means that Class of Term Loans consisting of the New Incremental Term Loans (all of which shall be deemed subject to the amortization holiday set forth in Section 2.07(e)) and any Initial Term Loans subject to the amortization holiday pursuant to
Section 2.07(e) and the First Omnibus Amendment.

Amendment No. 4” shall mean the Fourth Amendment to Limited Waiver to Credit Agreement and Fourth Amendment to Credit Agreement, dated as of October 31, 2017, among the Company, the Guarantors identified on the signature pages thereto, the Lenders party thereto, and the Administrative Agent.

Amendment No. 4 Effective Date” shall mean the “Fourth Amendment Effective Date”, as defined in Amendment No. 4.

Annual Financial Statements” means the audited consolidated balance sheets of the Borrower as of December 31, 2013, December 31, 2014, and December 31, 2015, and the related consolidated statements of income and statements of cash flows for the Borrower for the fiscal years then ended.

Applicable Discount” has the meaning set forth in Section 2.05(a)(v)(C)(2).

Applicable ECF Percentage” means, for any fiscal year, (a) 75% if the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09) as of the last day of such fiscal year is greater than 2.50 to 1.00, (b) 50% if the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09) as of the last day of such fiscal year is less than or equal to 2.50 to 1.00 and greater than 2.25 to 1.00, (c) 25% if the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09) as of the last day of such fiscal year is

 

 

6 Third Amendment

7 Third Amendment

 

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less than or equal to 2.25 to 1.00 and greater than 2.00 to 1.00 and (d) 0% if the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09) as of the last day of such fiscal year is less than or equal to 2.00 to 1.00; provided that for the purposes of this definition, the Consolidated First Lien Net Leverage Ratio shall be calculated to give pro forma effect to all voluntary prepayments listed in clauses (B)(1) through (B)(4) of Section 2.05(b)(i) that are made after the end of the applicable fiscal year for which Excess Cash Flow payments are required under Section 2.05(b)(i) but prior to the earlier of the making of such Excess Cash Flow payment and the date such Excess Cash Flow payment was required to have been made; it being agreed that such amounts may not be used to decrease Excess Cash Flow prepayments required under Section 2.05(b)(i) for such fiscal year.

Applicable Premium” means, with respect to any Initial Term Loan on any date of prepayment or repayment thereof (each, a “Prepayment Date”), an amount equal to the present value at such Prepayment Date of the premium that would be payable with respect to the Initial Term Loans being repaid on the day after the Relevant Call Date plus all cash interest that would be due and payable on the Initial Term Loans being repaid on such Prepayment Date from such Prepayment Date to the Relevant Call Date at the Applicable Rate then in effect, computed using a discount rate equal to the Treasury Rate plus 50 basis points.”8

Applicable Rate” means a percentage per annum equal to:

(a)    with respect to Initial Term Loans, (i) prior to the Amendm ent No. 4 Effective Date, (x) for Eurocurrency Rate Loans, 7.25% and (y) for Base Rate Loans, 6.25% and (ii) on and af ter the Am endment No. 4 Eff ective Da te and the New Incremental Term Loans, (x) for Eurocurrency Rate Loans, 7.50% and (y) for Base Rate Loans, 6.50%; provided, that to the extent that the 2017 Quarterly Financial Statement Requirement has not been satisfied by January 31, 2018, the Applicable Ra te pursuant to this clause (a)(ii) shall instead be, commencing February 1, 2018, (1) for Eurocurrency Rate Loans, 7.75% and (2) for Base Rate Loans, 6.75%; and9and

(b)     with respect to Revolving Credit Loans, unused Revolving Credit Commitments, Swing Line Loans (which are to be maintained solely as Base Rate Loans), and Letter of Credit fees:10

(i)    prior to the Amendment No. 4 Effective Date, (A) for Eurocurrency Rate Loans, EURIBOR Loans and Letter of Credit fees, 7.25%, (B) for Base Rate Loans, 6.25% and (C) for unused commitment fees, 0.50%;11

(ii)    on and after the Amendment No. 4 Effective Date, (x) until delivery of financial statements for the first full fiscal quarter ending after the Amendment No. 4 Effective Date pursuant to Section 6.01, (A) for Eurocurrency

 

 

8 Third Amendment

9 Fifth Amendment

10 Fifth Amendment

11 Fifth Amendment

 

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Rate Loans, EURIBOR Loans and Letter of Credit fees, 7.50%, (B) for Base Rate Loans, 6.50% and (C) for unused commitment fees, 0.50% and (y) thereafter, the percentages per annum set forth below, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):12

 

Applicable Rate

                 13   

Pricing Level

   Consolidated
First Lien
Net Leverage
Ratio
     Eurocurrency
Rate,
EURIBOR
and Letter of
Credit Fees
    Base Rate     Commitment
Fee Rate
 

1

   >  2.25 : 1.00        7.50     6.50     0.500

2

   £  2.25 : 1.00        7.25     6.25     0.375
   >  2.00 : 1.00         

3

   £  2.00 : 1.00        7.00     6.00     0.375

; provided, that to the extent that the 2017 Quarterly Financial Statement Requirement has not been satisfied by January 31, 2018, the Applicable Rate pursuant to this clause (b)(ii) shall instead be, from the period commencing February 1, 2018 until delivery of financial statements for the first full fiscal quarter ending after the Amendment No. 4 Effective Date pursuant to Section 6.01, (A) for Eurocurrency Rate Loans, EURIBOR Loans and Letter of Credit fees, 7.75%, (B) for Base Rate Loans, 6.75% and (C) for unused commitment fees, 0.50% and (z) thereafter, the percentages per annum set forth below, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):14

 

Applicable Rate

                 15   

Pricing Level

   Consolidated
First Lien
Net Leverage
Ratio
     Eurocurrency
Rate,
EURIBOR
and Letter of
Credit Fees
    Base Rate     Commitment
Fee Rate
 

1

   >  2.25 : 1.00        7.75     6.75     0.500

2

   £  2.25 : 1.00        7.50     6.50     0.375
   >  2.00 : 1.00         

3

   £  2.00 : 1.00        7.25     6.25     0.375

 

 

12 Fifth Amendment

13 Fifth Amendment

14 Fifth Amendment

15 Fifth Amendment

 

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(ac) Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated First Lien Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(a); provided that at the option of the Administrative Agent (at the direction of the Required Revolving Credit Lenders) or the Required Revolving Credit Lenders (following written notice to the Borrower), the highest pricing level shall apply as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply).
16

Notwithstanding the foregoing, (v) the Applicable Rate in respect of any Class of Extended Revolving Credit Commitments or any Extended Term Loans or Revolving Credit Loans or Swing Line Loans made pursuant to any Extended Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (w) the Applicable Rate in respect of any Class of Incremental Revolving Credit Commitments, any Class of Incremental Term Loans or any Class of Incremental Revolving Loans shall be the applicable percentages per annum set forth in the relevant Incremental Amendment, (x) the Applicable Rate in respect of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth in the relevant agreement relating thereto, (y) the Applicable Rate in respect of any Class of Refinancing Revolving Credit Commitments, any Class of Refinancing Revolving Credit Loans or any Class of Refinancing Term Loans shall be the applicable percentages per annum set forth in the relevant agreement relating thereto and (z) in the case of the Initial Term Loans, the Applicable Rate shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.14(e).

Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class and (b) with respect to Letters of Credit, (i) the relevant L/C Issuers and (ii) the Revolving Credit Lenders and (c) with respect to the Swing Line Facility, (i) the relevant Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.

Approved Bank” has the meaning set forth in clause (c) of the definition of “Cash Equivalents.”

Approved Fund means, with respect to any Lender, any Fund 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.

Arrangers” means Citigroup, Macquarie, Barclays Bank PLC, Citizens Bank, National Association, Merrill Lynch, Pierce, Fenner & Smith Incorporated and TD Securities (USA) LLC, each in its capacity as a joint lead arranger under this Agreement.

 

 

16 First  Amendm ent

 

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Assignee” has the meaning set forth in Section 10.07(b)(i).

Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit E-1 hereto.

Assignment Taxes” has the meaning set forth in Section 3.01(b).

Attorney Costs” means and includes all reasonable and documented fees, out of pocket expenses and disbursements of any law firm or other external legal counsel.

Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (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 2.05(a)(v); provided that the Borrower 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); provided, further, that neither the Borrower nor any of its Affiliates may act as the Auction Agent.

Auto-Extension Letter of Credit” has the meaning set forth in Section 2.03(b)(iii).

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

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

Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

Base Rate” means for any day a fluctuating rate per annum equal to the highest of (i) the Federal Funds Effective Rate plus 1/2 of 1%, (ii) the rate of interest in effect for such day as published by the Wall Street Journal, from time to time, as the “prime rate” and (iii) the rate per annum determined in the manner set forth in clause (b) of the definition of Eurocurrency Rate plus 1%; provided that, notwithstanding the foregoing, in no event shall the Base Rate applicable to the Initial Term Loans or the New Increm ental Term Loan at any time be less than 2.00% per annum. Any change in the Base Rate due to a change in such rate announced by the Administrative Agent or in the Federal Funds Effective Rate shall take effect at the opening of business on the day specified in the announcement of such change.

Base Rate Loan” means a Loan that bears interest based on the Base Rate.

 

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

Beneficial Ow nership Regulation means 31 C.F.R. § 1010.230.

Board” has the meaning set forth in the definition of “Statutory Reserves.”

Bookrunner” means each of Citigroup, Macquarie, Barclays Bank PLC, Citizens Bank, National Association, Merrill Lynch, Pierce, Fenner & Smith Incorporated and TD Securities (USA) LLC, each in its capacity as a joint bookrunning manager.

Borrowermeans  the Co mpanyhas the meaning set for th in the introductory paragraph hereto .

Borrower Materials” has the meaning set forth in Section 6.01.

Borrower Offer of Specified Discount Prepayment” means the offer by any Company Party to make a voluntary prepayment of Term Loans at a Specified Discount to par pursuant to Section 2.05(a)(v)(B).

Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by any Company Party of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Term Loans at a specified range of discounts to par pursuant to
Section 2.05(a)(v)(C).

Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by any Company Party of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.05(a)(v)(D).

Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or, a Term Borrowing or a New Incremental Term Loan Borrowing, as the context may require.

Business Day” means (i) any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of New York, (ii) if such day relates to any Eurocurrency Rate Loan or EURIBOR Loan, any such day on which dealings in deposits in Dollars or Euros, as the case may be, are conducted by and between banks in the London interbank eurodollar or European interbank market, as the case may be, and (iii) in reference to EURIBOR Loans, means any such day that is also a TARGET Day.

Capital Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capitalized Leases) by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on the consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries.

 

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Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP, 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 GAAP.

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

Cash Collateral has the meaning set forth in Section 2.03(g).

Cash Collateral Account” means a blocked account at a commercial bank selected by the Administrative Agent, in the name of the Borrower and under the sole dominion and control (within the meaning of the UCC) of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent.

Cash Collateralize” has the meaning set forth in Section 2.03(g). “Cash Collateralized” and “Cash Collateralizing” have meanings correlative thereto.

Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrower or any Restricted Subsidiary:

(a)    Dollars;

(b)    readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United States having average maturities of not more than 24 months from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;

(c)    (i) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, a province of Canada, the United Kingdom or any country which is a member of the Organisation for Economic Cooperation and Development; (ii) readily-marketable securities issued by any agency of the Canadian federal government, the United Kingdom or any country which is a member of the Organisation for Economic Cooperation and Development, the obligations of which are fully backed by the full faith and credit of the United States or Canadian government, the United Kingdom or any country which is a member of the Organisation for Economic Cooperation and Development, as applicable; and (iii) any readily-marketable direct obligations issued by any other agency of the Canadian government, any province of Canada or any political subdivision of any such state or province or any public instrumentality thereof, the United Kingdom or any country which is a member of the Organisation for Economic Cooperation and Development; provided that, in each case of (i), (ii), and (iii) above, such obligations, such obligations or securities (x) mature within one year from the date of acquisition thereof and (y) have a rating of at least “A-1” from S&P and at least “P-1” from Moody’s;

 

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(d)    time deposits or eurodollar time deposits with, insured certificates of deposit, bankers’ acceptances or overnight bank deposits of, or letters of credit issued by, any commercial bank that (i) is a Lender or (ii) (A) is organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the Organisation for Economic Cooperation and Development or is the principal banking Subsidiary of a bank holding company organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the OrganizationOrganisation for Economic Cooperation and Development and is a member of the Federal Reserve System, and (B) has combined capital and surplus of at least $250,000,000 or $100,000,000 in the case of any non-U.S. bank (any such bank in the foregoing clauses (i) or (ii) being an “Approved Bank”), in each case with maturities not exceeding 24 months from the date of acquisition thereof;

(e)    commercial paper and variable or fixed rate notes issued by an Approved Bank (or by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation (other than structured investment vehicles and other than corporations used in structured financing transactions) and rated A-2 (or the equivalent thereof) or better by S&P or P2 (or the equivalent thereof) or better by Moody’s, in each case with average maturities of not more than 24 months from the date of acquisition thereof;

(f)    marketable short-term money market and similar funds 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 nationally recognized statistical rating agency selected by the Borrower);

(g)    repurchase obligations for underlying securities of the types described in clauses (b), (c), (d) and (f) above entered into with any Approved Bank;

(h)    securities with average maturities of 24 months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government having an investment grade rating from either S&P or Moody’s (or the equivalent thereof);

(i)    Investments (other than in structured investment vehicles and structured financing transactions) with average maturities of 12 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;

(j)    securities with maturities of 12 months or less from the date of acquisition backed by standby letters of credit issued by any Approved Bank;

(k)    (i) instruments equivalent to those referred to in clauses (a) through (j) above denominated in Euros or any other foreign currency comparable in credit quality

 

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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 and in amounts reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction and (ii) in the case of any Foreign Subsidiary, such local currencies in those countries in which such Foreign Subsidiary transacts business from time to time in the ordinary course of business;

(l)    Investments, classified in accordance with GAAP as Current Assets of the Borrower or any Restricted Subsidiary, in money market investment programs which are registered under the Investment Company Act of 1940 or which are administered by financial institutions having capital of at least $250,000,000, 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 (a) through (k) above; and

(m)    investment funds investing at least 90% of their assets in securities of the types described in clauses (a) through (l) above.

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

Cash Management Obligations” means obligations owed by the Borrower or any Restricted Subsidiary to any Hedge Bank in respect of any Cash Management Services, in each case, pursuant to a Treasury Services Agreement, in each case to the extent designated by the Borrower and such Hedge Bank as “Cash Management Obligations” in writing to the Administrative Agent. The designation of any Cash Management Obligations shall not create in favor of such Hedge Bank any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Loan Documents.

Cash Management Services” means any agreement or arrangement to provide cash management services, including treasury, depository, overdraft and related liabilities, credit card processing, credit or debit card, purchase card, electronic funds transfer and other cash management services or arrangements, or any automated clearing house transfers of funds.

Casualty Event” means any event that gives rise to the receipt by the Borrower or any Restricted 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.

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

CFC Holding Company” means a Domestic Subsidiary of the Borrower that owns no material assets (directly or through one or more disregarded entities) other than the equity (including any debt instrument treated as equity for U.S. federal income tax purposes) of one or more Foreign Subsidiaries that are CFCs.

 

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Change of Control” shall be deemed to occur if (in the case of clauses (a) and (b), subject to the proviso at the end of this definition):

(a)    any person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) (but excluding (x) any employee benefit plan of such person and its Subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (y) SharecoSearchlight and (z) Par CapitalNantahala), shall have, directly or indirectly, acquired beneficial ownership of Equity Interests representing 35% or more of the aggregate voting power represented by the issued and outstanding Equity Interests of the Borrower;

(b)    Shareco or Par CapitalSearchlight or Nantahala shall have, directly or indirectly, acquired beneficial ownership of Equity Interests representing 40% or more of the aggregate voting power represented by the issued and outstanding Equity Interests of the Borrower; or

(c)     a “change of control” (or similar event) shall occur in any document pertaining to Incremental Equivalent Debt, or Credit Agreement Refinancing Indebtedness or Permitted Ratio Debt (or any Permitted Refinancing of any of the foregoing), in each case with an aggregate outstanding principal amount in excess of the Threshold Amount;

provided that, for purposes of determining whether a “Change of Control” has occurred, in no event (i) shall Shareco and Par Capitalshall Searchlight and N antahala be considered a “group” within the meaning of Rule 13d-3 or 13d-5 under the Exchange Act, nor (ii) shall (A) Shareco be deemed to have acquired beneficial ownershi p in the Equity Interests of the Borrower owned by Par Capital or (B) Par Capital be deemed to have acquired beneficial ownership in the Equity Interests of the Borrower owned by Shareco, in each case of the foregoing c lauses (i) and (ii), by virtue of Par Capital entering into a support or similar agreement pursuant to which Par Capital agrees to acquire, hold, vote or dispose shares of the Borrowers common stock, in each case, to the extent in furtherance of the acquisition by Shareco, in accordance with t he Shareco Transaction Documents, of up to 34.9% of the issued and outstanding shares of common stock of the Borrower..

Citi” means Citibank, N.A.

Citigroup” means Citigroup Global Markets Inc.

Class” (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, Extended Revolving Credit Commitments that are designated as an additional Class of Commitments, Incremental Revolving Credit Commitments, Refinancing Revolving Credit Commitments of a given Refinancing Series, Initial Term Commitments, Incremental Term Commitments, the New Increm ental Term Loan Comm itm ent, Refinancing Term Commitments of a given Refinancing Series or Commitments in respect of Replacement Term

 

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Loans and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Credit Loans, Extended Revolving Credit Loans that are designated as an additional Class of Revolving Credit Loans, Incremental Revolving Loans, Refinancing Revolving Credit Loans of a given Refinancing Series, Initial Term Loans, Extended Term Loans that are designated as an additional Class of Term Loans, Incremental Term Loans, the New Increm ental Term Loan, Refinancing Term Loans of a given Refinancing Series or Replacement Term Loans. Commitments (and in each case, the Loans made pursuant to such Commitments) that have different terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class. It is hereby acknowledged and agreed that as of the New Incremental Term Loan Closing Date, the Classes of Loans consist of (i) the Revolving Credit Loans, (ii) the Amortization Holiday Loans and (iii) the Initial Term Loans not subject to the amortization holiday pursuant to Section 2.07(e). Notwithstanding the foregoing, (x) other than as it relates to amortization, the Amortization Holiday Loans and the Term Loans not subject to the amortization holiday pursuant to Section 2.07(e) and (y) the Initial Term Loans and the New Incremental Term Loans, shall in all cases be treated as if they were the same Class of Loans for all purposes of this Agreement.

Closing Date” means January 6, 2017.

Closing Date  Consolidated  First Lien  Net Leverage  Ratio  means 3.20:1.00.

CNI True-Up Amount” means, for the first fiscal quarter of each fiscal year of the Borrower, an amount (if positive) equal to (x) the aggregate amount that increased Consolidated Net Income under clauses (e)(x) (to the extent relating to amounts paid in cash or Cash Equivalents by WMS to JV Holdings pursuant to section 5.2.2 of the WMS LLC Agreement) and (e)(y) of the definition of Consolidated Net Income during the immediately preceding fiscal year of the Borrower, minus (y) the aggregate amount of distributions actually paid in cash or Cash Equivalents by WMS to JV Holdings pursuant to section 5.2.2 of the WMS LLC Agreement during such immediately preceding fiscal year of the Borrower.

Code” means the Internal Revenue Code of 1986, and the regulations of the United States Department of the Treasury promulgated thereunder, as amended from time to time (unless as specifically provided otherwise).

Collateral” means the “Collateral” as defined in the Security Agreement and all the “Collateral” or “Pledged Assets” (or equivalent terms) as defined in any other Collateral Document and any other assets pledged pursuant to any Collateral Document (but in any event excluding the Excluded Assets).

Collateral and Guarantee Requirement” means, at any time, the requirement that:

(a)    the Administrative Agent shall have received each Collateral Document required to be, or to have been delivered (i) on the Closing Date pursuant to Section 4.01(a)(v) and, (ii) on the New Increm ental Term Loan Cl osi ng Da te pursuant to Section 7 of the First Omnibus Amendment and (iii) at such time as may be designated therein or

 

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herein, including on the New Increm ental Term Loan Cl osi ng Da te , pursuant to the Collateral Documents or Section 6.11 or 6.13, as applicable, duly executed by each Loan Party thereto;

(b)    all Obligations shall have been unconditionally guaranteed by the Borrower (other than with respect to its direct Obligations as a primary obligor (as opposed to a guarantor) under the Loan Documents) and, each Materialwholly-owned Domestic Subsidiary (other than any Excluded Subsidiary) including those that are listed on Schedule 1.01(B) hereto (each, a “Guarantor”);

(c)    the Secured Obligations and the Guaranty shall have been secured pursuant to the Security Agreement by a first-priority security interest (subject to Liens permitted by Section 7.01) in (i) all of the Equity Interests of each Restricted Subsidiary (other than any Immaterial Subsidiary) that i s a wholly o wned Domestic Subsidiary (other than a Domestic Subsidiary described in the following clause (ii)) directly owned byof the Loan Parties, and (ii) 65%all of the issued and outstanding Equity Interests of each Restricted Subsidiary that i s a CFC Holding Co mpany that i s directly owned by the Borrower or by any Subsidiary Guarantor, and (iii) 65% of the issued and outstanding Equity Interests of each Restricted Subsidiary that i s a wholly o wnedf i rst-tier Foreign Subsidiary that is directly owned by the Borrower or by any Subsidiary Guarantor, i n each case other than any Excluded Assets;a Loan Party; provided that solely to the extent that the grant of such a Lien in the Equity Interest of any such first-tier Foreign Subsidiary would result in any material adverse tax consequences (as reasonably determined by the Borrower in consultation with the Administrative Agent and not objected to by the Required Lenders), then such grant shall be limited to 66-2/3% of the Equity Interest of such first-tier Foreign Subsidiary;

(d)     except to the extent otherwise provided hereunder, including subject to Liens permitted by Section 7.01, or under any Collateral Document, the Secured Obligations and the Guaranty shall have been secured by a perfected first-priority security interest (to the extent such security interest m ay be perfected by delivering certificated securities, filing f inancing state ments under the Unif orm Commerci al Code or making any necessary filings w ith respect to the security interest w ith the United States Patent and Trademark Office or United States Copyright Office or to the extent required in the Security Agreement (or any other Collateral Document)) or by Mortgages referred to in clause (e) below in the Collateral of the Borrower and each Guarantor (including, without lim itation, accounts, inventory, equipment, fixtures, investment property, goods, chattel paper, instruments, payment intangibles, deposit accounts, commodity accounts, security accounts, contract rights, applications and registrations of intellectual property filed in the United States, other, general intangibles, Material Real Property, intercompany notes and proceeds of the foregoing), in each case, (i) with the priority required by the Collateral Documents and (ii) subject to exceptions and limitations otherwise set forth in this Agreement (for the avoidance of doubt, including the limitations and exceptions set forth in Section 4.01), the First Om nibus Am endm ent and the Collateral Documents; and

 

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(e)    the Administrative Agent shall have received (i) counterparts of a Mortgage with respect to each Material Real Property required to be delivered pursuant to Sections 6.11 and 6.13 (the “Mortgaged Properties”) duly executed and delivered by the applicable Loan Party, (ii) a title insurance policy for such property available in each applicable jurisdiction (the “Mortgage Policies”) insuring the Lien of each such Mortgage as a valid first-priority Lien on the property described therein, free of any other Liens except as permitted by Section 7.01, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request, (iii) a completed Life-of-Loan Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto) and, if any improvements on any Mortgaged Property are located within an area designated a “flood hazard area,” evidence of such flood insurance as may be required under Section 6.07, (iv) ALTA surveys in form and substance reasonably acceptable to the Administrative Agent or such existing surveys together with no-change affidavits sufficient for the title company to remove all standard survey exceptions from the Mortgage Policies and issue the endorsements required in clause (ii) above, (v) copies of any existing abstracts and appraisals and (vi) such legal opinions and other documents as the Administrative Agent may reasonably request with respect to any such Mortgaged Property;

provided, however, that (i) the foregoing definition shall not require, and the Loan Documents shall not contain any requirements as to, (A) the creation or perfection of pledges of, security interests in, Mortgages on, or the obtaining of title insurance, surveys, abstracts or appraisals or taking other actions with respect to any Excluded Assets and (B) any other assets that, in the reasonable judgment of the Administrative Agent and the Borrower, the cost of creating, perfecting or maintaining such pledges or security interests in such assets or obtaining title insurance, surveys, abstracts or appraisals in respect of such assets shall be excessive in view of the value of such assets or the practical benefit to the Lenders afforded thereby and (ii) the Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in this Agreement and the Collateral Documents.

The Administrative Agent may grant extensions of time for the perfection of security interests in, or the delivery of the Mortgages and the obtaining of title insurance and surveys with respect to, particular assets and the delivery of assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) or any other compliance with the requirements of this definition where it reasonably determines, in consultation with the Borrower, that perfection or compliance cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

NoExcept as specified by the Required Lenders in their sole discretion, no actions in any non-U.S. jurisdiction or required by the Laws of any non-U.S. jurisdiction shall be required in order to create any security interests in assets located, titled, registered or filed outside of the U.S. or to perfect such security interests (it being understood that, except as specified by the Required Lenders in their sole discretion, there shall be no security agreements or pledge agreements governed under the Laws of any non-U.S. jurisdiction).

 

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The foregoing definition shall not require (i) control agreements and perfection by “control” with respect to any Collateral other than, to the extent required by the Administrative Agent, certificated Equity Interests of the Borrower and, to the extent constituting Collateral, its Restricted Subsidiaries or (ii) landlord waivers, estoppels and collateral access letters.

Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property Security Agreements, the Mortgages, collateral assignments, Security Agreement Supplements, security agreements, pledge agreements, intellectual property security agreements or other similar agreements deliveredinstrument, document or agreement pursuant to which the Borrower or of the any Restricted Subsidiaries had granted (or has purported to have granted) any Lien to the Administrative Agent pursuant to Section 4.01(a)(v), 6.11 or 6.13 and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.or any other Secured Party to secure the Obligations under the Loan Documents.

Commitment” means a Revolving Credit Commitment, Extended Revolving Credit Commitment of a given series, Incremental Revolving Credit Commitment, Refinancing Revolving Credit Commitment of a given Refinancing Series, Initial Term Commitment, Incremental Term Commitment, New Incremental Term Loan Commitment, Refinancing Term Commitment of a given Refinancing Series or Commitment in respect of Replacement Term Loans, as the context may require.

Committed Loan Notice” means a written notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other or (c) a continuation of Eurocurrency Rate Loans or EURIBOR Loans pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A hereto.

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.

Communications Act” means the Communications Act of 1934, as amended, and the rules, regulations, and published policies of the FCC.

Company” has the meaning set forth in the introductory paragraph hereto.

Company Parties” means, collectively, the Borrower and its Restricted Subsidiaries, and “Company Party” means any one of them.

Compensation Period” has the meaning set forth in Section 2.12(c)(ii).

Compliance Certificate” means a certificate substantially in the form of Exhibit D-1 hereto.

 

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Confidential Information Memorandum” shall mean the Confidential Information Memorandum of the Borrower dated December 7, 2016.

Consolidated Cash Interest Expense” means, for any period, total interest expense determined in accordance with GAAP for such period but only to the extent paid or currently payable in cash in such period (for the avoidance of doubt, any such amount shall exclude any interest expense that, at the option of the Borrower, may be paid in cash or in kind, as long as the Borrower elects such payment to be made in kind and such payment is actually paid in kind during the relevant period), and excluding, for the avoidance of doubt, (i) amortization of deferred financing costs, debt issuance and amendment costs, commissions, fees and expenses, (ii) Transaction Expenses, fees and expenses associated with the EMC Acquisition Transactions and the MTN Acquisition Transactions and any annual agency fees, (iii) fees and expenses (including bridge, arrangement, structuring, amendment, commitment and other similar fees) associated with any amendment or modification of the Loan Documents and any Disposition, Permitted Acquisition, Investment or issuance of Equity Interests or Indebtedness, in each case, permitted hereunder and whether or not consummated, (iv) any expenses resulting from discounting of indebtedness in connection with the application of recapitalization accounting or purchase accounting, (v) penalties or interest related to taxes and any other amounts of noncash interest resulting from the effects of acquisition method accounting or pushdown accounting, (vi) the accretion or accrual of, or accrued interest on, discounted liabilities during such period, (vii) any one-time cash costs associated with breakage in respect of Swap Contracts for interest rates and (viii) all non-recurring interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations. For purposes of calculating Consolidated Cash Interest Expense (a) for the period of four fiscal quarters ending March 31, 2017, Consolidated Cash Interest Expense for such period shall be deemed to be an amount equal to Consolidated Cash Interest Expense for the fiscal quarter ending March 31, 2017 multiplied by four, (b) for the period of four fiscal quarters ending June 30, 2017, Consolidated Cash Interest Expense for such period shall be deemed to be an amount equal to Consolidated Cash Interest Expense for the period of two consecutive fiscal quarters ending June 30, 2017 multiplied by two and (c) for the period of four fiscal quarters ending September 30, 2017, Consolidated Cash Interest Expense for such period shall be deemed to be an amount equal to Consolidated Cash Interest Expense for the period of three consecutive fiscal quarters ending September 30, 2017, multiplied by 4/3.

Consolidated EBITDA” means, for any period, the sum of (x) Reported Adjusted EBITDA for such period, plus (y) to the extent not exceeding 20% of the Reported Adjusted EBITDA for such period, estimated “run-rate” cost savings which have not yet been realized from actions previously taken by the Borrower and its Subsidiaries as of such time, as certified by a financial officer of the Borrower as being reasonably anticipated and achievable during the 12-month period following the end of the applicable period for which Consolidated EBITDA is so being calculated (“Actioned Costs Savings”) calculated as if such Actioned Cost Savings have been realized on the first day of the applicable Test Period and were realized during the entirety of such Test Period. As used herein, “run-rate” means the full annualized benefit that is associated with any Actioned Costs Savings, net of the amount of actual benefits realized, during any Test Period and any subsequent Test Period (covering the period in which such action giving rise to such Actioned Costs Savings occurred) in which the effects thereof are expected to be realized relating to such Actioned Cost Savings (but in no event exceeding one year from such action giving rise to such Actioned Costs Savings). In addition, if during such period for which

 

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Consolidated EBITDA is being so calculated, any Specified Transaction shall have occurred, then Consolidated EBITDA shall be adjusted in accordance with Section 1.09(a) and (b) hereof (solely as such adjustments relate to those elements of Consolidated EBITDA set forth herein (and in Reported Adjusted EBITDA) and solely on and subject to the terms set forth herein (including the limitations in clause (y) above), in each case, as if such Specified Transaction had taken place on the first day of the Test Period for which Consolidated EBITDA is being calculated.

Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period, plus:

(a)     without duplication and, except with respect to clauses (vii)(B), (x) and (xi) below, to the extent deducted (and not added back or excluded) in arriving at such Consolidated Net Income, the sum of the following amounts for such period with respect to the Borrower and its Restricted Subsidiaries:

(i)     total interest expense determined in accordance with GAAP (including, to the extent deducted and not added back in computing Consolidated Net Income, (A) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (B) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (C) non-cash interest payments, (D) the interest component of Capitalized Leases, (E) net payments, if any, pursuant to interest Swap Contracts with respect to Indebtedness, (F) amortization of deferred financing fees, debt issuance costs, commissions and fees, and (G) the interest component of any pension or other post-employment benefit expense) and, to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such hedging obligations, and costs of surety bonds in connection with financing activities (whether amortized or immediately expensed),

(ii)     without duplication, provision for taxes based on income, profits or capital gains of the Borrower and the Restricted Subsidiaries, including, without limitation, federal, state, foreign, local, franchise and similar taxes and foreign withholding taxes paid or accrued during such period including penalties and interest related to such taxes or arising from any tax examinations,

(iii)     depreciation and amortization (including amortization of intangible assets, deferred financing fees, debt issuance costs, commissions, fees and expenses, bridge, commitment and other financing fees, discounts, yield) and other fees and charges (including amortization of unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits, of the Borrower and its Restricted Subsidiaries),

 

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(iv)    extraordinary, infrequent, unusual, exceptional or non-recurring charges, expenses or losses,

(v)     non-cash charges, expenses or losses, including, without limitation, any non-cash expense relating to the vesting of warrants (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),

(vi)     retention, recruiting, relocation and signing bonuses and expenses, stock option and other equity-based compensation expenses, severance costs, stay bonuses, transaction fees and expenses and management fees and expenses, and any one time expense relating to enhanced accounting function or other transaction costs, including those associated with becoming a public company (including, without duplication, any such payments made in connection with the consummation of the MTN Acquisition Transactions or the EMC Acquisition Transactions, as the case may be),

(vii)    (A) the amount of any restructuring charges and related charges, restructuring costs, integration costs, transition costs, consolidation and closing costs for facilities, costs incurred in connection with any non-recurring strategic initiatives, costs incurred in connection with acquisitions and non-recurring intellectual property development after the Closing Date, other business optimization expenses (including costs and expenses relating to business optimization programs and new systems design and implementation costs), project start-up costs and other restructuring charges, accruals or reserves (including restructuring costs related to acquisitions after the Closing Date and to closure/consolidation of facilities, retention charges, systems establishment costs and excess pension charges) and (B) the amount of cost savings, operating expense reductions, other operating improvements and synergies projected by the Borrower in good faith to result from actions taken or expected to be taken in connection with (1) the MTN Acquisition Transactions, the EMC Acquisition Transactions, the Transactions or any other Specified Transaction or (2) the implementation of any Cost Savings Initiative after the Closing Date (in each case calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, other operating improvements and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) a duly completed certificate signed by a Responsible Officer of the Borrower shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 6.02, certifying that such cost savings, operating expense reductions, other operating improvements and synergies are (i) reasonably supportable and quantifiable in the good faith judgment of the Borrower, and (ii) reasonably anticipated to be realized within 18 months after the consummation of the

 

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applicable Specified Transaction or the implementation of a Cost Savings Initiative which is expected to result in such cost savings, expense reductions, other operating improvements or synergies, (y) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (vii) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and (z) the aggregate add-backs pursuant to this clause (vii)(B) (plus any adjustments made pursuant to Section 1.09(c) but excluding any adjustments consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as interpreted by the staff of the SEC)) shall not exceed 25% of Consolidated EBITDA for such Test Period (calculated after giving effect to any such add-backs or adjustments),

(viii)    [reserved],

(ix)    other accruals, payments and expenses (including rationalization, legal, tax, structuring and other costs and expenses), or any amortization thereof, related to the Transactions (including all Transaction Expenses), the MTN Acquisition Transactions, the EMC Acquisition Transactions, acquisitions, Investments, dividends, Dispositions, or any amortization thereof, issuances of Indebtedness or Equity Interests permitted under the Loan Documents or repayment of debt, issuance of equity securities, refinancing transactions or amendment or other modification of any debt instrument (in each case, including any such transaction consummated on the Closing Date and any such transaction undertaken but not completed),

(x)    to the extent not already included in Consolidated Net Income, proceeds of business interruption insurance (to the extent actually received),

(xi)     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 paragraph (b) below for any previous period and not added back,

(xii)     any non-cash increase in expenses (A) resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments, or (B) due to purchase accounting associated with the MTN Acquisition Transactions, the EMC Acquisition Transactions or any acquisition constituting an Investment consummated prior to or, to the extent not prohibited by this Agreement, after the Closing Date,

(xiii)     the amount of any expense or reduction of Consolidated Net Income consisting of Restricted Subsidiary income attributable to minority interests or non-controlling interests of third parties in any non-wholly owned Restricted Subsidiary; provided that the amount of such cash dividends or distributions deducted pursuant to this clause (xiii) in any Test Period shall not

 

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exceed such third partys pro rata share of the Consolidated EBITDA (to the extent positive) of such non-wholly owned Restricted Subsidiary for such Test Period,

(xiv)     letter of credit fees,

(xv)     the am ount of fees, inde mnifications and reim bursement of expenses of directors of any Company Party,

(xvi)     any Equity Funded Employee Plan Costs,

(xvii) any net loss f rom disposed, abandoned or discontinued operations or product lines,

(xviii) [reserved],

(xix)     earn-out and contingent consideration obligations (including to the extent accounted for as bonuses or otherw ise) and adjustments thereof and purchase price adjustments, in any case in connection with any acquisition or other Investment, and

(xx)     any cos ts or expenses i ncurred relating t o environ mental remediation, litigation or other disputes in respect of events and exposures that occurred prior to the Closing Date;

minus (b) without duplication and to the extent included i n arriving at such Consolidated Net Income, (i) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period), (ii) any net gain from disposed, abandoned or discontinued operations or product lines and (iii) the amount of any minority interest income consisting of Restricted Subsidiary losses attributable to minority i nterests or non-controlling interests of third parties in any non-wholly owned Restricted Subsidiary; provided that:

(A)     to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA (x) currency translation gains and losses related to currency remeasurem ents of Indebtedness (including the net loss or gain (i) resulting from S wap Contracts for currency exchange risk and (ii) resulting from interco mpany indebtedness) and (y) all other foreign currency translation g